CLA-2 RR:CTF:TCM 968009 JAS
Paul S. Anderson, Esq.
Sonnenberg & Anderson
300 South Wacker Drive, Suite 1220
Chicago, IL 60606
RE: Air Cleaner Filter Cassette
Dear Mr. Anderson:
In a letter dated November 18, 2005, on behalf of WINIX, Inc., you inquire as to the classification of replacement filter cassettes for air cleaners under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). You supplemented this letter with a submission, dated January 30, 2006, with attachments, proposing classification as parts of filtering and purifying machinery and apparatus in subheading 8421.99.0080, HTSUSA, and providing us with a sample filter cassette. You presented additional factual and legal arguments during a teleconference with members of my staff on March 1, 2006, which you confirmed in an email transmittal, dated March 20, 2006.
FACTS:
The air cleaner filter cassette (“filter cassette”) is a filtering element used in household-type air cleaners. It consists of three components, an anti-bacterial “pre-filter,” a high efficiency particulate air or HEPA filter and an activated carbon filter coated with nano silver. All are enclosed in a rectangular hard plastic housing. The pre-filter consists of extruded polypropylene filaments woven into a textile fabric on a plastic grid. It is washable and reusable and designed to capture large, airborne pollutants such as hair, dust and insects. The pre-filter has no discernable anti-bacterial characteristics. The HEPA filter is designed to capture smaller particles such as fine dust, pollens and
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allergens as small as 0.3 microns. This component is made primarily of polyethylene terephthalate or thermoplastic resin, adhesives, polypropylene, cellulose paper, resins and waxes. It measures about 16 inches x 12 inches x ¾ inch and folds accordion-like into the outer plastic housing. The third component consists of activated carbon sprayed with nano silver. The carbon component, made from coconut shell pellets, is sandwiched between two layers of woven polypropylene textile fabric on a plastic grid, nearly identical to the fabric in the pre-filter component. It absorbs chemical fumes, smoke, and household and pet odors. You indicate the nano silver has anti-bacterial and anti-fungal properties and consists of silver particles as small as one nanometer or billionth of a meter in size – hence the term “nano” – that can be manipulated as a liquid. It is sprayed onto one side of the textile fabric to deodorize and prevent mold.
The HTSUS provisions under consideration are as follows:
Textile products and articles, for technical uses, specified in note 7
to [chapter 59]:
Other
* * * *
…filtering or purifying machinery and apparatus, for liquids or
gases; parts thereof:
Filtering or purifying machinery and apparatus for gases:
Parts:
8421.99.00 Other
ISSUE:
Whether the filter cassette is a textile article for technical use provided for in heading 5911 and thereby excluded from chapter 84.
LAW AND ANALYSIS:
Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), goods are to be classified according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6. GRI 3(b) states, in part, that composite goods consisting of different materials or made up of different components
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which are, prima facie, classifiable in two or more headings, and cannot be classified by reference to 3(a) because each heading describes part only of the good, shall be classified as if they consisted of the material or component which gives them their essential character.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are thus useful in ascertaining the classification of merchandise under the Harmonized System. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
In support of classification under subheading 8421.99.00, HTSUS, you state the filter cassettes constitute “parts” because they are integral, constituent component parts without which the air filters cannot operate. You concede that Section XVI, Note 1(e), HTSUS, excludes [other] articles of textile material for technical uses (heading 5911), but argue the filter cassette cannot be construed a “textile article” as that term is generally understood.
You assert that it is the plastic housings of each component and the overall plastic frame that predominate in visual appearance and provide the strength and protection for the filtering elements. You maintain that most commonplace air filters, characterized by the pre-filter and HEPA filter components in this case, block out physical pollutants. However, it is the activated carbon and nano silver in the instant filter cassette that neutralizes micro-sized pollutants and odors that you claim provides the most important aspect of the product’s overall function and, therefore, imparts its essential character. Similarly, notwithstanding its plastic constituent, this component comprises the highest single percentage of the filter cassette, both by weight and by value. You note that heading 8421 provides in part, for filtering or purifying machinery and apparatus and, that by use of the term “or” the drafters of the HTSUS intended that filtering be distinguished from purifying for heading 8421 purposes.
Applying the common and commercial meaning of the terms “filtering” and “purifying,” you posit that the pre-filter and HEPA filter, both considered to be textile materials, remove solid particles from the air and, thus, perform a filtering function, while the activated carbon component which absorbs odors plus the nano silver component which both sterilizes and neutralizes bacteria together perform the purifying or cleaning aspect of the filter. It is these latter components which you maintain impart the essential character to the filter cassette because they enable the cassette to be marketed as an air cleaner rather than as a mere air filter.
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For these reasons, you conclude that the combined activated carbon and nano silver component is not a textile article, thus eliminating heading 5911 from consideration. This negates the impact of Section XVI, Note 1(e) and establishes subheading 8421.99.00, HTSUS, other parts of filtering or purifying machinery and apparatus, as the correct classification.
Lastly, you cite several rulings that classify man-made fabric for filtering purposes and filter media in rolls in heading 5911, HTSUS. You acknowledge Customs and Border Protection’s often-stated position that fabric used for filtering purposes in industrial dust collection systems is considered a technical application, but distinguish these rulings because they deal with the fabric alone and none can be considered authority for classifying a filtering element enclosed in a plastic housing and consisting in part of the carbon and nano silver elements as well as cellulose and polypropylene, all of which are not man-made fibers.
We agree that rulings classifying textile materials and filter media in rolls for use in air filters as textile articles for technical uses of heading 5911 are instructive but not directly relevant to the classification of the filter cassette at issue here. We will therefore omit any detailed discussion of these rulings.
The GRI 3(b), HTSUS, in part, provides for composite goods. The 3(b) ENs indicate that composite goods include not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts. In our opinion, the filter cassette at issue qualifies as a composite good. Each of the three filtering elements is a discrete component but all snap fit into the plastic housing and complement one another. The filter cassette is prima facie classifiable in heading 3802, as activated carbon, in heading 3926, as other articles of plastics, in heading 5911 as textile products and articles, for technical uses and in heading 7106, silver, unwrought or in semimanufactured forms, or in powder form. Each heading, however, describes part only of the good.
In assessing a good’s essential character under Rule 3(b), factors such as bulk, quantity, weight or value, or the role of a constituent material in relation to the use of the goods are to be considered, though the importance of certain factors will vary between different goods. See HQ 951537, dated January 6, 1993, and HQ 956538, dated November 29, 1994. The function of the activated carbon in removing odors from the air is a type of filtering or purifying while the antibacterial and antifungal qualities the nano sliver is said to possess are not entirely clear from the record. Nevertheless, it is the total surface area consisting of the woven textile fabric in each of the three filter
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components that performs the overwhelming majority of the cassette’s function. In the third component the activated carbon is supported or held in place between the textile fabric layers, so these layers take on an additional significance. Aside from bulk and quantity, the combined percentages, by weight and value, of the pre-filter and the HEPA filter predominate over the respective percentages for the carbon/nano silver component. The evidence of record compels the conclusion that it is the pre-filter and the HEPA filter components, in the main of woven textile fabric, which impart the essential character to the filter cassette.
Chapter 59, Note 7(b), HTSUS, includes within heading 5911 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). Filtering has consistently been held to be a technical use, and textile fabric used as filtering media is provided for in heading 5911, HTSUS. See GKD-USA, Inc. v. United States, 20 CIT 749, 931 F. Supp. 875 (1996), and HQ 965659, dated August 27, 2002. Likewise, filters used in household air purifiers, the internal filter medium being composed of extruded polypropylene filaments forming a non-woven material that is folded into a circular accordion shape in a circular plastic mesh housing, are classifiable in heading 5911, HTSUS. See HQ 966083, dated June 19, 2003. This ruling cited the primacy of heading 5911 and why the parts provision of heading 8421 did not apply. You would distinguish this ruling on a factual basis because the merchandise in that
case lacked the activated carbon/nano silver component and cellulose, plastic and polypropylene not in the form of extruded fabrics that is present here. In our
opinion, because of the significance of the pre-filter and HEPA filter components in this case, HQ 966083 is highly instructive in providing a rationale for classifying the filter cassette at issue here in heading 5911. See also HQ 965820, dated October 3, 2002, on furnace filters consisting of a nonwoven web of electrostatically charged polypropylene fibers as the filter medium and a metal mesh support, all in a cardboard frame.
You cite numerous other rulings, several of which we have discussed, that purport to recognize the dichotomy you assert between filtering functions and purifying/cleaning functions for heading 8421 purposes. You note these rulings all describe a filtering operation, as discussed previously, but none involve purifying aspects such as sterilization, removing bacteria and the like which mainly involve absorbing odors. A plausible explanation for this might be that the drafters of the HTSUS did not intend the dichotomy you propose. Whether the conjunction “and” may be read as the disjunctive “or,” or vice versa, depends on the context, and the legislative history. See F.L. Kraemer & Company et al. v. United States, 29 Cust. Ct. 82, C.D. 1449 (1952). Our reading of the heading 84.21 ENs does not support the distinction
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between “filtering” and “purifying” that you assert and, in fact, evince no meaningful distinction between filters and purifiers. The heading (II) FILTERING OR PURIFYING MACHINERY AND APPARATUS, FOR LIQUIDS OR GASES is subdivided into (A) Filtering and purifying machinery, etc., for liquids, including water softeners and (B) Filtering or purifying machinery, etc., for gases. The ENs describe this latter group as follows:
These gas filters and purifiers are used to separate
solid or liquid particles from gases…to eliminate
harmful materials (e.g., dust extraction, removal
of tar, etc., from gases or smoke fumes, removal of
oil from steam engine vapors) (Underscoring added).
Thus, it is apparent that the primary function of filters and purifiers of heading 8421 is to capture large, airborne pollutants such as hair, dust, insects and pet hair as well as similar items down to .3 microns in size. This further emphasizes the significance of the pre-filter and the HEPA filter components of the filter cassette which perform this function, both of which are considered to be textile materials.
For all of the reasons above, the filter cassette is to be classified as if consisting of the pre-filter and the HEPA filter components which are textile articles of a kind used for technical purposes provided for in heading 5911. Section XVI, Note 1(e), HTSUS, serves to eliminate heading 8421 from consideration.
HOLDING:
Under the authority of GRI 3(b), HTSUS, replacement filter cassettes for air cleaners are provided for in heading 5911. They are classifiable in subheading 5911.90.0080, HTSUSA. The 2006 column one, general rate of duty under this provision is 3.8 percent ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch