CLA-2 RR:CTF:FTM H278592 EGJ
Port Director
U.S. Customs and Border Protection
Protest & Control
1100 Raymond Blvd., Suite 402
Newark, NJ 07102
Attn: Jennifer Tagliaferro, Supervisory Entry Specialist
Re: Application for Further Review of Protest No. 4601-15-100126: Classification of Eight Styles of Textile Fabric
Dear Port Director:
This is in response to Protest 4601-15-100126, dated March 2, 2015, filed by counsel on behalf of Mid-Atlantic Industrial Textiles, Inc. (Protestant), in response to your classification of eight styles of textile fabric under the Harmonized Tariff Schedule of the United States (HTSUS). Samples of the subject merchandise and U.S. Customs and Border Protection (CBP) laboratory reports were included with the protest. Our office has also reviewed the supplemental materials and videos provided by Protestant’s counsel via email dated February 15, 2018.
FACTS:
The protested entry includes eight styles of textile fabric. A description of each style number is provided below.
Three Styles of Woven Fabric (5-511-820-063, 729-63 and 10.1OZ-A-W-81)
The first style, 5-511-820-063, is a five harness satin weave fabric made up of polypropylene filament yarns. The fabric is imported in bulk rolls. According to the Protestant, this fabric is used in liquid filtration fabrics, usually filter press cloth.
The second style, 729-63, is a polyester, satin weave fabric. The third style, 10.1OZ-A-W-81, is a synthetic staple fiber fabric with a twill weave. Both styles are imported in bulk rolls. According to the submission, both of these styles of fabric are used to make dust filter bags for use in industrial dust collection systems.
Five Styles of Needleloom Felt Fabric (16OZ-WOR, 14OZ-A-NS, PPS-18-RZ-S-70, PPS-81-5 and 16 OZ-PP-84)
According to CBP’s laboratory reports, all of these styles consist of a needleloom felt fabric. Further, all of these styles, except for style 14-OZ-A-NS, have a thin coating of a rubber/plastics material on one side. All of these styles are imported in bulk rolls. According to the Protestant, these five styles of felt fabric are all used in air filtration applications, such as dust collector filter bags or reverse air baghouses (used in air pollution control).
ISSUE:
What is the tariff classification of the eight styles of fabric?
LAW AND ANALYSIS:
The subject merchandise was entered on September 30, 2013. All of the fabric was entered under heading 5603, HTSUS, which provides for nonwoven fabric. The Port rate advanced and liquidated the entered merchandise under the following headings: the satin weave fabric (Style 729-63) under heading 5512, HTSUS, as a woven fabric of over 85% synthetic staple fibers, the twill weave fabric (Style 10.1OZ-A-W-81) under heading 5513, HTSUS, as a woven fabric of less than 85% synthetic staple fibers, the polypropylene filament fabric under heading 5407, HTSUS, as a woven fabric of synthetic filament yarn, and all of the needleloom felt fabric under heading 5602, HTSUS, which provides for felt.
The subject entry liquidated on July 25, 2014. On January 20, 2015, the Protestant timely filed the instant Protest and Application for Further Review (AFR). On March 2, 2015, the Protestant filed a supplement to the AFR. We note that the matter is protestable as a decision on classification. 19 U.S.C. §1514(a)(2). The Protestant’s AFR satisfies application criteria because the Protestant alleges that classification of the subject merchandise raises questions of law which have not been ruled upon by CBP. 19 C.F.R. § 174.24(b). For example, the Protestant suggests that the merchandise is classifiable under subheading 5911.10, HTSUS, as a fabric similar to a kind used for card clothing.
Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
The 2013 HTSUS provisions at issue are as follows:
5407 Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404:
Other woven fabrics, containing 85 percent or more by weight of synthetic filaments:
5407.71.00 Unbleached or bleached.
* * * * *
5512 Woven fabrics of synthetic staple fibers, containing 85 percent or more by weight of synthetic staple fibers:
Containing 85 percent or more by weight of polyester staple fibers:
5512.11.00 Unbleached or bleached.
Other:
5512.91.00 Unbleached or bleached.
* * * * *
5513 Woven fabrics of synthetic staple fibers, containing less than 85 percent by weight of such fibers, mixed mainly or solely with cotton, of a weight not exceeding 170 g/m2:
Printed:
5513.49 Other woven fabrics:
5513.49.90 Other.
* * * * *
5602 Felt, whether or not impregnated, coated, covered or laminated:
5602.10 Needleloom felt and stitchbonded fiber fabrics:
5602.10.10 Laminated fabrics.
5602.10.90 Other.
* * * * *
5603 Nonwovens, whether or not impregnated, coated, covered or laminated:
* * * * *
5911 Textile products and articles, for technical uses, specified in note 7 to this chapter:
5911.10 Textile fabrics, felt and felt-lined woven fabrics, coated, covered or laminated with rubber, leather or other material, of a kind used for card clothing, and similar fabrics of a kind used for other technical purposes, including narrow fabrics made of velvet impregnated with rubber, for covering weaving spindles (weaving beams):
5911.40 Straining cloth of a kind used in oil presses or the like, including that of human hair:
5911.90 Other.
* * * * *
Note 1 to Chapter 54 provides that:
1. Throughout the tariff schedule, the term "man-made fibers" means staple fibers and filaments of organic polymers produced by manufacturing processes, either:
(a) By polymerization of organic monomers to produce polymers such as polyamides, polyesters, polyolefins or polyurethanes, or by chemical modification of polymers produced by this process (for example, poly(vinyl alcohol) prepared by the hydrolysis of
poly(vinyl acetate)); or
(b) By dissolution or chemical treatment of natural organic polymers (for example, cellulose) to produce polymers such as cuprammonium rayon (cupro) or viscose rayon, or by chemical modification of natural organic polymers (for example, cellulose, casein and other proteins, or alginic acid), to produce polymers such as cellulose acetate or alginates.
The terms "synthetic" and "artificial", used in relation to fibers, mean: synthetic: fibers as defined at (a); artificial: fibers as defined at (b). Strip and the like of heading 5404 or 5405 are not considered to be man-made fibers.
* * * * *
Notes 2-3 to Chapter 56 provide as follows:
2. The term "felt" includes needleloom felt and fabrics consisting of a web of textile fibers the cohesion of which has been enhanced by a stitch-bonding process using fibers from the web itself.
3. Headings 5602 and 5603 cover respectively felt and nonwovens, impregnated, coated, covered or laminated with plastics or rubber whatever the nature of these materials (compact or cellular).
Heading 5603 also includes nonwovens in which plastics or rubber forms the bonding substance.
Headings 5602 and 5603 do not, however, cover:
(a) Felt impregnated, coated, covered or laminated with plastics or rubber, containing 50 percent or less by weight of textile material or felt completely embedded in plastics or rubber (chapter 39 or 40);
(b) Nonwovens, either completely embedded in plastics or rubber, or entirely coated or covered on both sides with such materials, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of color (chapter 39 or 40); or
(c) Plates, sheets or strip of cellular plastics or cellular rubber combined with felt or nonwovens, where the textile material is present merely for reinforcing purposes (chapter 39 or 40).
* * * * *
Note 7 to Chapter 59 provides as follows:
7. Heading 5911 applies to the following goods, which do not fall in any other heading of Section XI:
(a) Textile products in the piece, cut to length or simply cut to rectangular (including square) shape (other than those having the character of the products of headings 5908 to 5910), the following only:
(i) Textile fabrics, felt and felt-lined woven fabrics, coated, covered or laminated with rubber, leather or other material, of a kind used for card clothing, and similar fabrics of a kind used for other technical purposes, including narrow fabrics made of velvet impregnated with rubber, for covering weaving spindles (weaving beams);
(ii) Bolting cloth;
(iii) Straining cloth of a kind used in oil presses or the like, of textile material or of human hair;
(iv) Flat woven textile fabrics with multiple warp or weft, whether or not felted, impregnated or coated, of a kind used in machinery or for other technical purposes;
(v) Textile fabric reinforced with metal, of a kind used for technical purposes;
(vi) Cords, braids and the like, whether or not coated, impregnated or reinforced with metal, of a kind used in industry as packing or lubricating materials;
(b) Textile articles (other than those of headings 5908 to 5910) of a kind used for technical purposes (for example, textile fabrics and felts, endless or fitted with linking devices, of a kind used in papermaking or similar machines (for example, for pulp or asbestos-cement), gaskets, washers, polishing discs and other machinery parts).
* * * * *
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN 54.07 provides, in pertinent part, as follows:
This heading covers woven fabrics (as described in Part (I) (C) of the General Explanatory Note to Section XI) made of synthetic filament yarn or of monofilament or strip of heading 54.04; it includes a very large variety of dress fabrics, linings, curtain materials, furnishing fabrics, tent fabrics, parachute fabrics, etc.
This heading does not include …
(e) Woven fabrics for technical uses, of heading 59.11.
* * * * *
Turning to the first style, 5-511-820-063, we note that this is a woven fabric made from 100% synthetic filament yarns. The Port liquidated this product under subheading 5407.71.00, HTSUS, which provides for woven fabrics of synthetic filament yarn.
The Protestant, however, asserts that the fabric should be classified under subheading 5911.40, HTSUS, which provides for “Straining cloth of a kind used in oil presses or the like, of textile material or of human hair.” For support, the Protestant has attached a fabric construction detail sheet for style 5-511-820-063, which states that it is used for filter press cloth (straining cloth for liquid). We note that this is a textile product imported in the piece, as it is imported in bulk rolls. We agree with the Protestant that this style is described by subheading 5911.40, HTSUS, as a straining cloth because it is used to separate solids from liquids. See Airflow Technology, Inc. v. United States, 524 F.3d 1287, 1292 (Fed. Cir. 2008) remanded to Airflow Technology v. United States, 804 F. Supp. 2d 1292 (Ct. Int’l Trade 2011) (“We conclude from the plain meaning of the term that ‘straining cloth’ encompasses only products that separate solids from liquids.”). As fabric style 5-511-820-063 is used to separate solids from liquids, and otherwise meets the terms of Note 7 to Chapter 59, we find that it is properly classified as a straining cloth under subheading 5911.40, HTSUS.
The next two styles of fabric are also woven fabrics. Style 729-63 is composed wholly of polyester staple yarns, and style 10.1OZ-A-W-81 is composed wholly of synthetic staple yarns. Note 1 to Chapter 54 states that polyester fibers are a type of synthetic fiber. Therefore, both of these woven fabric styles are described by heading 5512, HTSUS, which provides for “woven fabrics of synthetic staple fibers, containing 85 percent or more by weight of synthetic staple fibers.”
The Protestant, however, provides two alternative classifications. First, the Protestant proposes to classify these two fabrics under subheading 5911.10, which provides for “Textile fabrics, felt and felt-lined woven fabrics, coated, covered or laminated with rubber, leather or other material, of a kind used for card clothing, and similar fabrics of a kind used for other technical purposes, including narrow fabrics made of velvet impregnated with rubber, for covering weaving spindles (weaving beams).” The Protestant asserts that the instant fabrics are similar fabrics because they are used for a technical purpose when they are assembled into dust collector bags.
Examining subheading 5911.10, HTSUS, we note that it covers fabric of a kind used for card clothing “and similar fabrics.” In order to be classified in this subheading, a fabric must be of a kind used for card clothing or else very similar to such. We note that the term “card clothing” is not defined in the HTSUS. However, we are of the view that card clothing is a fabric which attaches to a carding machine. A series of small metal spikes pierce through the fabric, which is often coated with rubber. For support, we note the definitions of card clothing which are provided below:
Card Clothing. The material used to cover the working surfaces of the card, i.e., cylinder and rolls or flats. The clothing consists of either wire teeth set in a foundation fabric or rubber, or narrow serrated metal flutes which are spirally arranged around the roll. The metallic wire has the appearance of a band-saw blade. Dictionary of Fiber & Textile Technology 23 (Hoechst Celanese Corp. 1990).
Card Clothing. A thick foundation material usually made with textile fabrics through which many fine, closely spaced, specially bent wires project. Various surfaces of the card are covered with this material and it is these which perform the cleaning and equalizing functions of the card. Fairchild’s Dictionary of Textiles 103 (Fairchild Publications, Inc. 1970).
In Airflow Technology, Inc. v. United States, 804 F.Supp. 2d 1292 (Ct. Int’l Trade 2011) (“Airflow III”) on remand from 524 F.3d 1287 (Fed. Cir. 2008)(“Airflow II”), the U.S. Court of International Trade (“CIT”) examined the text of subheading 5911.10, HTSUS. In Airflow III, the merchandise at issue was Sperifilt, a nonwoven air filtration fabric for spray paint booths. Id. With regard to fabric “of a kind used for card clothing,” the CIT concluded as follows:
Here, as both parties acknowledge, Sperifilt is an air filtration medium, not a material "of a kind used for card clothing." [citation omitted]. In other words, Sperifilt is not used as card clothing and is not "commercially fungible" with goods used as card clothing. See Primal Lite, Inc. v. United States, 182 F.3d 1362, 1363-64 (Fed. Cir. 1999) (stating that "class or kind" of good referred to in ARI 1(a) is limited to "those goods that are commercially fungible with the imported goods"). Sperifilt therefore does not fall within the scope of the first part of Note 7(a)(i) to Chapter 59, covering certain fabrics of a kind used for card clothing. See Note 7(a)(i) to Chapter 59, HTSUS. Id. at 1303 – 1304.
Similarly, we find that the instant fabrics are not of a kind used for card clothing. The subject fabrics are designed for either liquid or air filtration. They are not designed to be equipped with metal spikes or to operate on a carding machine. For these reasons, they do not meet the terms of the first part of subheading 5911.10, HTSUS, which provides for “fabrics … of a kind used for card clothing.”
The second part of subheading 5911.10 covers “similar fabrics of a kind used for other technical purposes, including narrow fabrics made of velvet impregnated with rubber, for covering weaving spindles (weaving beams).” The text of subheading 5911.10 is reproduced verbatim in Note 7(a)(i) to Chapter 59. In Airflow III, the CIT also analyzed the meaning of this text by stating that, “In short, according to the terms of Note 7(a)(i), material is a "similar fabric" within Note 7(a)(i) if it: (1) is "of a kind used for other technical purposes"; and (2) possesses qualities similar to those listed in the first part of Note 7(a)(i).” 804 F.Supp. 2d at 1304 – 1305. The CIT elaborates on these two points as follows:
As described above, card clothing refers to the foundation or base material "through which many fine, closely spaced, specially bent wires project," and which is used to cover the cylinders of carding machines that operate to card (i.e., disentangle) various textile fibers. [citation omitted] For these reasons, card clothing "must possess four attributes: (1) strength; (2) flexibility or elasticity; (3) support; and (4) resistance to stretching[,]" and "must retain these attributes for a long period of time." [citation omitted]. Further, like card clothing fabric, the only "similar fabric" specifically identified in Note 7(a)(i) - "narrow fabrics made of velvet impregnated with rubber, for covering weaving spindles" - is also fastened to machinery for use in a mechanical process. Id. at 1305.
Applying these factors to the nonwoven spray paint booth filter fabric, the CIT concluded that Sperifilt was not a fabric of subheading 5911.10. The CIT noted that Sperifilt was a light and porous fabric, which made it distinguishable from card clothing and velvet impregnated with rubber for covering weaving spindles. Id. at 1306. The CIT further stated that Sperifilt was unlike the two fabrics named in Note 7(a)(i) because those fabrics covered or supported the parts of a machine, whereas Sperifilt was inserted as a panel into the ventilation system of a paint spray booth and remained stationary during the air filtration process. Id.
Regarding the instant styles of woven fabric, the Protestant asserts that they have the four characteristics cited by the CIT: (1) strength; (2) flexibility or elasticity; (3) support; and (4) resistance to stretching. The Protestant notes that these fabrics are made up into bags to be used in industrial baghouses to filter dust particles out of the air. Baghouses are used to control air pollution in industries such as cement and asphalt manufacturing, foundry and metal reclamation, chemical production and food processing. The bags will be exposed to high pressure air currents moving at fast speeds. For all of these reasons, the Protestant claims that its fabric must meet customer specifications requiring strength, flexibility, support and resistance to stretching.
According to the Protestant, there are three types of baghouses: the pulse jet baghouse, the reverse air baghouse and the shaker baghouse. All three types of baghouses filter dirty air by blasting the air at high speeds through the air filter bags. The filter bags for the shaker baghouse are cleaned by having the cell plate securing the bottom of each bag removed. The bags are then shaken from above and dirt falls into the hopper below the bags. The remaining bags are cleaned by being blasted with clean air.
Similar to Sperifilt, these filter bags are passive filtration devices. Air moves through the bags and gets filtered. Although the bags may nominally move and shake as air blasts through them, the movement is not necessary to air filtration. Indeed, the only mechanical movement for any of these bags is those designed for use in a shaker baghouse. Again, the mechanical movement is to shake dirt out of the bags. It doesn’t relate to the function of filtering the air. Even if the woven fabric styles are designed for strength, flexibility, support and resistance to stretching, they are not “similar” fabrics to card clothing and narrow clothing for weaving spindles because they are not parts or supporting parts of machines. For all of these reasons, we find that these fabrics are not classifiable under subheading 5911.10, HTSUS.
In the alternative, the Protestant asserts that these two styles of woven fabrics are classifiable under subheading 5911.90, HTSUS. For support, the Protestant cites to Note 7(a)(iv), which provides for “Flat woven textile fabrics with multiple warp or weft, whether or not felted, impregnated or coated, of a kind used in machinery or for other technical purposes” (emphasis added). However, after an examination of the fabric samples, we note that these two styles do not have multiple warp or weft. Instead, each style has one system of warp threads and one system of weft threads. As such, they cannot be classifiable as flat woven textile fabrics with multiple warp or weft.
For all of the aforementioned reasons, we find that these two styles of fabric are described by heading 5512, HTSUS, as woven fabrics of 85 percent or more by weight of synthetic staple fibers. With regard to Style 729-63, we note that it is properly classified under subheading 5512.11.00, HTSUS, as a woven fabric containing 85 percent or more by weight of polyester staple fibers, because it is wholly composed of polyester staple fibers. With regard to Style 10.1OZ-A-W-81, we note that it falls to be classified as an “other” type of synthetic staple fiber woven fabric under subheading 5512.91.00, HTSUS, because none of the preceding subheadings describe it.
Now we turn to the five styles of needleloom felt fabric: 16OZ-WOR, 14OZ-A-NS, PPS-18-RZ-S-70, PPS-81-5 and 16 OZ-PP-84. The Port liquidated all of these fabrics under subheading 5602.10, HTSUS, which provides for needleloom felt, whether or not impregnated, coated, covered or laminated. All but one of the styles (14-OZ-A-NS) have a thin coating of a rubber/plastics material on one side. According to the Protestant, these five styles of felt fabric are all used in air filtration applications, such as dust collector filter bags or reverse air baghouses (used in air pollution control).
The Protestant asserts that the five styles of needleloom felt fabric are classifiable in subheading 5911.10, HTSUS, which provides for card clothing or similar fabrics. As stated above, this subheading provides for a very narrow range of heavy duty textile fabrics. They are not card clothing or similar to card clothing or narrow fabric impregnated with rubber of subheading 5911.10, HTSUS.
Heading 5602, HTSUS, provides for “Felt, whether or not impregnated, coated, covered or laminated.” Further, Note 3 to Chapter 56 states that heading 5602 covers felt “impregnated, coated, covered or laminated with plastics or rubber whatever the nature of these materials (compact or cellular).” Four of the felt fabrics are coated with plastics or rubber, and the fifth style is uncoated. Heading 5602, HTSUS, describes all five styles of the felt fabrics. Therefore, we agree with the Port that the five styles of felt fabrics are all classified under subheading 5602.10, HTSUS, which provides for needleloom felt whether or not impregnated, coated, covered or laminated.
HOLDING:
By application of GRIs 1 (Note 7(a)(iii) to Chapter 59) and 6, style 5-511-820-063 (100% synthetic filament yarns) is classified under subheading 5911.40.00, HTSUS, which provides for “Textile product and articles for technical uses, specified in note 7 to this chapter: Straining cloth of a kind used in oil presses or the like, including that of human hair.” The 2013 column one, general rate of duty is eight percent ad valorem. You are instructed to ALLOW the protest with regard to style 5-511-820-063.
By application of GRIs 1 and 6, style 729-63 (100% polyester staple yarns) is classified under subheading 5512.11.00, HTSUS, which provides for “Woven fabrics of synthetic staple fibers containing 85 percent or more by weight of synthetic staple fibers: Containing 85 percent or more by weight of polyester staple fibers: Unbleached or bleached.” The 2013 column one, general rate of duty is 12 percent ad valorem. You are instructed to DENY the protest with regard to style 729-63.
By application of GRIs 1 and 6, style 10.1OZ-A-W-81 (100% synthetic staple fibers) is classified under subheading 5512.91.00, which provides for “Woven fabrics of synthetic staple fibers containing 85 percent or more by weight of synthetic staple fibers: Other: Unbleached or bleached.” The 2013 column one, general rate of duty is 14.9 percent ad valorem. Since the rate of duty under the classification indicated above is more than the liquidated rate, you are instructed to DENY the protest with regard to style 10.1OZ-A-W-81.
By application of GIRs 1 and 6, styles 16OZ-WOR, 14OZ-A-NS, PPS-18-RZ-S-70, PPS-81-5 and 16 OZ-PP-84 are all classified under subheading 5602.10.90, HTSUS, which provides for “Felt, whether or not impregnated, coated, covered or laminated: Needleloom felt and stitch-bonded fiber fabrics: Other.” The 2013 column one, general rate of duty is 10.6 percent ad valorem. You are instructed to DENY the protest with regard to styles 16OZ-WOR, 14OZ-A-NS, PPS-18-RZ-S-70, PPS-81-5 and 16 OZ-PP-84.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at www.usitc.gov.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Myles B Harmon, Director
Commercial and Trade Facilitation Division