CLA-2 RR:CR:TE 965174 ttd
TARIFF NO: 5911.40.0000
Port Director
U.S. Customs Service
610 S. Canal Street
Chicago, IL 60607-4523
RE: Application for Further Review of Protest Number 3901-00-100190; Classification of AXTAR® polyester material
Dear Sir or Madam:
This is a decision on an Application for Further Review (AFR) of Protest Number 3901-00-100190, which you forwarded to our office for review. Izumi America, Inc. (Protestant) timely filed the AFR on January 13, 2000. The AFR challenges the liquidation of one entry of AXTAR® polyester material, liquidated October 15, 1999, and classified under subheading 5911.40.0000 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was submitted.
FACTS:
The subject merchandise, identified as AXTAR® Style No. G2260-1S, is a 100 percent polyester nonwoven cloth material. The subject material is spunbonded with a compact structure and made from continuous extruded filaments.
The Protestant entered one shipment of the subject material, under subheading 5911.40.0000, HTSUSA, which provides for textile products and articles, for technical uses, specified in Note 7 to Chapter 59. The Protestant timely filed a protest against the classification, liquidation and tariff treatment and made application for further review claiming that the merchandise should be classified in subheading 5603.14.9090, HTSUSA, which provides for "Nonwovens, whether or not impregnated, coated, covered or laminated: Of man-made filaments: weighing more than 150 g/m2: Other." This AFR involves questions of law or fact that have not been ruled upon and is therefore properly granted.
ISSUE:
What is the proper classification of the subject merchandise under the HTSUSA?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be “determined according to the terms of the headings and any relative section or chapter notes.” In the event that goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied.
The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the heading. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
Heading 5911, HTSUSA, provides for textile products and articles for technical uses so long as they are specified in Note 7 to Chapter 59. Note 7 to Chapter 59 reads:
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).
The EN to heading 5911, HTSUSA, describe "straining cloths" as:
… (e.g., woven filter fabrics and needled filter fabrics), whether or not impregnated, of a kind used in oil presses or for similar filtering purposes (e.g., in sugar refineries or breweries) and for gas cleaning or similar technical applications in industrial dust collecting systems. The heading includes oil filtering cloth, certain thick heavy fabrics of wool or of other animal hair, and certain unbleached fabrics of synthetic fibres (e.g, nylon) thinner than the foregoing but of a close weave and having a characteristic rigidity. It also includes similar straining cloth of human hair.
Thus, according to the EN, straining cloths specifically include filter fabrics used for technical applications in industrial dust collecting systems.
Customs has consistently classified various types of filter fabric, like the subject material, as technical use fabric under subheading 5911.40.0000, HTSUSA. In HQ 958415, dated March 26, 1996, a nonwoven filter material made of 100 percent polyester, used in desalination, chemical and waste treatment filtration operations, was classified as technical use fabric of subheading 5911.40.0000, HTSUSA. Likewise, in HQ 955244, dated April 4, 1994, we classified nonwoven polyester filter mat used as air filter medium as a technical use fabric under subheading 5911.40.0000, HTSUSA. In HQ 954138, dated June 15, 1993, we classified air filter media made of a spunbonded nonwoven component and batting material as a technical use fabric of subheading 5911.40.0000, HTSUSA. Similarly, in HQ 950493, dated September 29, 1992, Customs classified polyester filter material imported in rolls for use as an air filter to remove dust particles from treated intake air in heading 5911, HTSUSA. In that ruling, filtering dust particles from the air was considered a technical application, and the cloth was classified as a straining cloth under subheading 5911.40.0000, HTSUSA. See also HQ 950167, dated March 13, 1992, wherein Customs ruled that a diffusion filter fabric made of 100 percent polyester fibermat was classifiable as a technical use fabric.
Here, the Protestant argues that the subject AXTAR® material was erroneously classified as straining cloth of subheading 5911.40.0000, HTSUSA. In his letter, the Protestant states:
The description of item 5911.40.0000, Straining cloth of a kind used in oil presses or the like, seems to cover a fabric which is very technical in nature and which is specifically designed for a specific and demanding end use.
The Protestant contends that the subject material, AXTAR® G2260-1S, and similar materials, in varying weights, has not been designed for such an end use. The Protestant states "[t]he material has not been designed for any one end use, but is general in design and suitable for all or many of the uses described." We disagree that the material has not been designed for the end use of filtration.
According to its marketing materials, Toray Industries, Inc. (Toray), the manufacturer of AXTAR®, proposes that AXTAR's® properties allow it to be used for a wide range of applications, including civil engineering, agriculture, building and interior materials. Toray also claims that AXTAR® "is available in a variety of grades, each dedicated to its application." Moreover, Toray submits that AXTAR® G2260-1S is suited for application as a "dust collector (ex: food, coating, wood, working and cementic collection)" and for "electrical discharge machinery." See http://www.bzplaza.com/axtar/data.html. Toray lists the properties of AXTAR® as:
100% polyester filament non-woven fabric/
High mechanical strength/
Low moisture and low water absorption/
High resistance to temperatures/
High chemical resistance/
Pleats process provides good filtration area/
High resistance to mold/
High weather resistance/
Based on Toray's claims, AXTAR® G2260-1S appears to be engineered and manufactured as an industrial grade filter media. Moreover, AXTAR® meets the highest rating standards of the Berufsgenossenschaftliches Institut fur Arbeitssicherheit (BIA), which quantitatively measures and rates relative efficiency of filter media used in dust collection equipment. Indeed, AXTAR® G2260-1S has obtained the highest BIA rating, C level, by performing with a penetration degree less than 0.1 percent (i.e., it is 99.9 percent efficient at removing material of 0.2-2.0 microns at 11 feet per minute). Thus, despite the possible applications mentioned by the manufacturer for AXTAR® material generally, the AXTAR® material under consideration (G2260-1S), at the time of import, is primarily a filter material as represented by its manufacturer.
The Protestant contends that according to Note 7 to Chapter 59 of Section XI, "heading 5911 applies to goods which do not fall in any other heading of Section XI." In the alternative to classification in heading 5911, HTSUSA, the Protestant asserts that the subject merchandise is properly classified in heading 5603, HTSUSA, which provides for nonwoven fabrics. However, the EN to heading 5603 expressly state that "[n]onwovens for technical uses, of heading 59.11" are excluded from this heading. Thus, the EN to heading 5603, HTSUSA, specifically provide that nonwovens for technical use are classifiable in heading 5911, HTSUSA, and are excluded from heading 5603.
The Protestant also contends the subject material, if not classified in heading 5603, HTSUSA, is properly classified in heading 8421, HTSUSA. Heading 8421 provides for, among other things, parts of filtering or purifying machinery and apparatus, for liquids or gases. Chapter 84 falls within Section XVI of the HTSUSA, and Section Note 1(e) cautions that the section does not cover other articles of textile material for technical purposes (heading 5911). For the reasons set forth above, the subject filter material is used for technical purposes and properly classified in heading 5911, HTSUSA. Therefore, Section 1(e) prevents this merchandise from being classified in heading 8421.
HOLDING:
Based on the foregoing, the subject merchandise is classified in subheading 5911.40.0000, HTSUSA, which provides for "Textile products 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." It is dutiable at the 1998 general column one rate at 11 percent ad valorem.
The protest should be denied in full. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision. Since there are no reliquidations involved in this protest, you should be able to accomplish this direction prior to the 60 day period.
Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel, and to the general public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act and other public access channels.
Sincerely,
Myles Harmon, Acting Director
Commercial Rulings Division