CLA-2 CO:R:C:T 955244 ch
Frank J. Schuchat, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
1615 L Street, N.W.
Washington, D.C. 20036-5694
Re: Classification of nonwoven polyester filter mat used as
an air filter medium in paint spray booths; HRL 950493,
NYRL 865310 affirmed; straining cloth; technical use
fabric.
Dear Mr. Schuchat:
This is in response to your letters dated October 19, 1993,
and March 16, 1994, requesting reconsideration of Headquarters
Ruling Letter (HRL) 950493, dated September 29, 1992, and New
York Ruling Letter (NYRL) 865310, dated August 1, 1991, which
concerned the tariff classification of a filter mat for use in
down draft paint spray booths. We met with you and Pieter
Borkent, President of Filtrair Corporation, on February 1, 1994,
to discuss this matter.
FACTS:
The subject merchandise, identified as type CC-600G, is a
nonwoven mat composed of polyester fibers to which a nylon scrim
fabric has been laminated to one side. The filter mat is
approximately 1 inch thick and is imported in rolls measuring 80
inches wide by 66 in feet length. It is cut to size in the
United States. The filter mat is installed into the ceilings of
down draft paint spray booths and is used by automobile
manufacturers as a medium to filter out incoming air, dust and
dirt particles.
An accompanying technical data sheet describes the
merchandise as follows:
Progressively structured, high density and high
performance nonwoven air filter medium made from
synthetic fibers, resin- and thermally bonded, with
special adhesive coating in full depth on each
individual fiber to ensure:
1. absolutely no migrating of paint-damaging
particles larger than 15 microns, due to vibration;
2. 100% coating of all fibers;
3. full self-extinguishing flame properties.
Clean air side particularly dense and smoothed,
reinforced with woven open mesh scrim, and imprinted
with EU-5 classification and DIN identification permit
number.
Other marketing information states that the mat is designed
for:
[S]uper fine air filtration of the air supply side of
paint spray plants and down draft paint booths. The
most important criterion in this technology is to
prevent paint damaging particles 15 microns and larger
from migrating downstream after collection, due to
vibration in the system.
In HRL 950493 and NYRL 865310, the filter mat was classified
in subheading 5911.40.0000, Harmonized Tariff Schedule of the
United States Annotated (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.
ISSUE:
What is the proper tariff classification for the type CC-
600G filter mat?
LAW AND ANALYSIS:
You contend that the instant filter mat was erroneously
classified as straining cloth of subheading 5911.40, HTSUSA, on
several grounds. First, you note that the mat is a nonwoven
product and direct our attention to the Explanatory Note to
heading 5911, at page 823, which states:
Straining cloth (e.g., woven filter fabrics an (sic)
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.
You contend that the exemplars of this Note are limited to woven
fabrics. From this premise you reason that nonwoven materials
are excluded from the straining cloth provision.
However, the Explanatory Note to heading 5911, HTSUSA, sets
forth at least one example of a nonwoven fabric classified as
straining cloth: needled filter fabrics classified in heading
5602, HTSUSA. In addition, heading 5603, HTSUSA, provides for
nonwovens. The Explanatory Note to heading 5603, at page 776,
states the heading excludes nonwovens for technical uses. This
exclusion indicates that nonwovens for technical uses are
classified generally within heading 5911. Consequently, we
conclude that the straining cloth provision of subheading
5911.40, HTSUSA, is not limited to woven fabrics.
You next observe that heading 5911, HTSUSA, is limited to
textile products and articles for "technical uses." The
Explanatory Note to heading 5911, at page 822, states in
pertinent part that:
The textile products and articles of this heading
present particular characteristics which identify them
as being for use in various types of machinery,
apparatus, equipment or instruments or as tools or
parts of tools. (Emphasis added).
You argue that the CC-600G filter mat is not used in any
"machinery, apparatus, equipment or tools" and draw an analogy
between the instant mat and a panel installed in an office
ceiling. As a result, you take the position that the mat is not
designed for a "technical use" and is precluded from
classification within heading 5911, HTSUSA.
In this case, the filter mat is placed in the ceiling of a
spray paint booth approximately 20 feet high and wide. Air is
blown through the ceiling, sucked through the floor and passed
through water. The filter removes dust and other particles from
the air. This process creates the dust free environment
necessary to paint automobiles. We regard the spray paint booth
as an "apparatus," as it performs a function or executes a task
(i.e. the cleaning of air) independent from its use as work
space. As the filter mat is designed for use in apparatus, it
may be classified as a textile product for technical uses. On
the other hand, an office in and of itself performs no function
or task. For this reason, a ceiling panel in an office is not
designed for a technical use.
You further suggest that the filter mat is more properly
classified in heading 5603, HTSUSA, which provides generally for
nonwovens. You claim that European administrations classify this
material in heading 5603. Hence, in the interests of uniformity
the filter material should be classified in the same manner in
this country.
We agree that the subject merchandise is prima facie
classifiable as a nonwoven of heading 5603. However, as alluded
to above, the Explanatory Note to heading 5603 states that
nonwovens for technical uses are classified in heading 5911. As
we have determined that the filter mat is a textile for technical
uses, it follows that it is excluded from heading 5603. In
addition, pursuant to General Rule of Interpretation 3(a),
heading 5911 provides a more specific description of the
merchandise than heading 5603.
We are not bound by the classification determinations of
other contracting parties to the Harmonized Commodity Description
and Coding System. In this regard, we note that in buttressing
one of your alternative claims you have submitted a ruling letter
from the Canadian administration classifying the instant filter
material within heading 5911. In light of this conflicting
precedent we will not re-classify this product in the absence of
substantive and compelling legal arguments refuting our
rationale.
The Explanatory Note to heading 5911, at page 823, indicates
that straining cloths used in industrial dust collecting systems
are classified in subheading 5911.40, HTSUSA. In HRL 950493, we
stated that the instant filter mat used in paint spray booths was
"a technical application in an industrial dust collecting
system." You dispute this finding and state that an industrial
dust collecting system is "a mechanism that collects dust or
other particles that have been dispersed in a confined space...so
that the particles or dust do not escape into the atmosphere
along with the air expelled from the confined space." As the
filter mat is not used in a system to collect and expel air, you
conclude that it is not straining cloth of subheading 5911.40,
HTSUSA.
More generally, you cite HRL 950733, dated December 28,
1993, as support for your position that the filter mat is not
straining cloth of a kind used in oil presses or the like. In
that decision, we stated that:
The references referred to above indicate that oil
presses are designed to maximize the surface area of
the filter cloth through which the slurry is forced.
The filter cloth is relatively heavy and thick in
relation to bolting cloth. For this reason, it is
generally more durable than bolting cloth. There
appears to be no requirement that the filter cloth
possess exact and uniform openings. Cloths which are
relatively thick and heavy and which possess variable
pore openings will capture a high volume of solids of
variable size.
The EN reinforce this interpretation as they indicate
that the provision encompasses heavy fabrics of wool
which possess a characteristic rigidity. It also lists
a close weave as a property characteristic of straining
cloth, which may be contrasted to the fine woven
uniform mesh weave normally found in bolting cloths.
Finally, the EN list a variety of fabrics embraced by
the straining cloth classification, including woven
filter fabrics, needled filter fabrics, fabrics of wool
or of other animal or human hair. From these
observations we conclude that the straining cloth
provision provides for most, if not all, of the filter
fabrics for technical purposes not described by the
bolting cloth provision.
In HRL 950733, we found that the straining cloth and bolting
cloth provisions within heading 5911, HTSUSA, describe most, if
not all, filter fabrics which are for technical uses. Thus, the
filter mat need not be used in an industrial dust collecting
system to be classified as straining cloth. Rather, it need only
generally exhibit the characteristics of straining cloth, as that
term is used in the HTSUSA, to be classified in subheading
5911.40, HTSUSA. Straining cloth includes material that is
relatively thick and heavy in relation to bolting cloth,
possesses a close weave and variable pore openings in order to
capture a large volume of solids or particles.
As previously stated, the straining cloth provision
encompasses nonwoven fabrics. Thus, the fact that the filter mat
does not possess a close weave does not preclude it from
classification within subheading 5911.40. We note that marketing
materials describe the mat as a high density filter. Hence, it
will capture relatively small particles in a manner similar to
cloth possessing a close weave. Although the mat may not be
thick and heavy in absolute terms, it is thicker (approximately 1
inch) and is appreciably heavier than bolting cloth.
Furthermore, the filter mat does not possess the exact and
uniform openings characteristic of bolting cloth. Marketing
information indicates that it is designed to hold and retain a
high volume of particles to prevent "migrating of paint-damaging
particles larger than 15 microns, due to vibration." As a
result, our administrative precedent supports our determination
that the filter mat is properly classified as straining cloth of
subheading 5911.40, HTSUSA.
HOLDING:
The subject merchandise is classifiable under 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. The applicable rate of duty
is 17 percent ad valorem.
Sincerely,
John Durant, Director