CLA-2: OT:RR:CTF:TCM H011194 KSH
Port Director
U.S. Customs and Border Protection
477 Michigan Ave
Room 210
Detroit, MI 48226
RE: Application for Further Review of Protest 3801-07-100045
Dear Port Director: This is in reply to your correspondence forwarding the Application for Further Review of Protest (AFR) 3801-07-100045, filed by Sidley Austin LLP, on behalf of Zenon Environmental, Inc.
The protest is against Customs and Border Protection’s (CBP) classification of eleven entries of ZW 500D filtration membrane modules in heading 5911 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Textile products and articles, for technical uses, specified in note 7 to this chapter.”
Protestant entered the merchandise subject to this protest between June 7, 2005 and January 28, 2006 in heading 8421, HTSUS, which provides for “Centrifuges, including centrifugal dryers; filtering or purifying machinery and apparatus, for liquids or gases; parts thereof.” Nine entries of the merchandise were liquidated under Heading 5911, HTSUS, on July 28, 2006 and two entries were liquidated on August 4, 2006.
Protestant filed a protest with an application for further review on January 25, 2007, challenging the classification of the merchandise in heading 5911, HTSUS. Protestant’s AFR request was approved on March 19, 2007. The protest was timely filed pursuant to 19 U.S.C. 1514 (c)(3) for entries liquidated on August 4, 2006. For entries liquidated on July 28, 2006, the protest was not timely filed.
In support of protestant’s application for further review, protestant alleges that the decision is inconsistent with Headquarters Ruling Letters (HQ) 966642, dated July 13, 2004, HQ 088426, dated August 8, 1991 and New York Ruling Letter (NY) L80202, dated October 28, 2004. See 19 C.F.R. 174.24(a) and (b). Further review is warranted pursuant to 19 CFR §§174.24(a) and 174.25. Specifically, protestant contends that the decision to classify the ZW-500 in heading 5911, HTSUS, is inconsistent with NY L80202, which classified a reverse osmosis filter element in heading 8421, HTSUS, and HQ 966642, which classified a filtration membrane in heading 8421, HTSUS.
In reaching our decision herein, consideration was given to protestant’s supplemental submission dated April 3, 2008.
FACTS:
The ZeeWeed® 500 (ZW-500) is an ultrafiltration membrane made up of vertically oriented strands of hollow coated fibers secured at each end by plastic headers to form modules. Each membrane contains thousands of strands which make up 340 or 440 square feet of membrane surface area. Each of the membrane strands is made of a polyester yarn that has been woven or braided into a straw shape that is entirely coated with a polymer cellulose blend. The cross-sectional diameter of each strand is 1.9 mm. A ZeeWeed system consists of one or more combinations of membrane modules, called cassettes, housed in a steel frame with integral piping and diffusers. The cassettes are installed in filtration tanks and connected to piping and other equipment of the tanks. High quality treated water is produced by filtering water through the ZW-500 membranes.
ISSUE: Whether the ZW-500 is classified in heading 5911, HTSUS, as a textile article for technical uses or in heading 8421, HTSUS, as a part of filtering or purifying machinery or apparatus.
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 GRI may then be applied.
The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. It is Customs and Border Protection’s (CBP) practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
Protestant argues that the ZW-500 is a composite good which should be classified in accordance with GRI 3(b). Protestant further maintains that pursuant to GRI 3(b), the essential character is imparted by the plastic resin coating that is more expensive and permits filtration and/or purification. Because the essential character is imparted by the plastic resin, protestant concludes that Note 1(e) to Section XVI, HTSUS, is inapplicable.
Heading 8421, HTSUS, falls within Section XVI, HTSUS. Note 1(e) to Section XVI, HTSUS, provides:
This section does not cover: [t]ransmission or conveyor belts or belting of textile material (heading 5910) or other articles of textile material for technical uses (heading 5911).
The EN to heading 8421, HTSUS, states in relevant part:
Subject to the general provisions regarding the classification of parts (see the General Explanatory Note to Section XVI), the heading covers parts for the above-mentioned types of filters and purifiers….
* * * *
It should be noted, however, that filter blocks of paper pulp fall in heading 48.12 and that many other filtering elements (ceramics, textiles, felts, etc.) are classified according to their constituent material.
The General EN to Section XVI, HTSUS, similarly provides:
This section does not, however, cover:
(c) Textile articles, e.g., transmission or conveyor belts (heading 59.10), felt pads and polishing discs (heading 59.11).
Additional U.S. Rule of Interpretation 1(c) provides:
In the absence of special language or context which otherwise requires a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for “parts” or “parts and accessories” shall not prevail over a specific provision for such part or accessory.
Pursuant to the aforementioned section note and additional U.S. Rule of Interpretation 1(c), the ZW-500 must be excluded from classification in heading 5911, HTSUS, before consideration can be given to classification in heading 8421, HTSUS.
As previously noted, each membrane is composed of a core of braided yarn sheathed with plastic. Table I of the EN to Section XI, states that braided textile yarn that is tightly braided with a compact structure is classified as twine or cordage in heading 5607, HTSUS. See HQ 965230, dated June 30, 2002.
Heading 5607, HTSUS, provides for "Twine, cordage, ropes and cables, whether or not plaited or braided and whether or not impregnated, coated, covered or sheathed with rubber or plastics." The EN to heading 5607, HTSUS, provide in pertinent part:
* * * *
Twine, cordage, ropes and cables are used as binder twine, for tying packages, towing, loading, etc. Their cross-section is usually round but some (e.g., some transmission cables) have a square, trapezoidal or triangular section. They are normally unbleached, but may be dyed, impregnated to make them rot-proof, formed of different coloured strands, or impregnated, coated, covered or sheathed with rubber or plastics.
Protestant cites to Note 3 to Section XI, HTSUS, which states that yarns are treated as “twine or cordage” if “of man-made fibers (including yarn of two or more monofilaments of chapter 54) measuring more than 10,000 decitex.” Excepted from the scope is “man-made filament tow of chapter 55 and multifilament yarn without twist or with a twist of less than 5 turns per meter of chapter 54.” Pursuant to Note 3 to Section XI, HTSUS, protestant maintains that the yarns are loosely braided and do not measure 10,000 decitex. Further, protestant argues that the plaited yarns are not for use as binder twine, tying packages, towing or loading, etc.
The EN to heading 5607, HTSUS, expressly states that the twine, cordage, rope or cable may be impregnated, coated, covered or sheathed with rubber or plastics. As previously noted, Table I of the EN to Section XI states that braided textile yarn that is tightly braided with a compact structure is classified as cordage in heading 5607, HTSUS. Our analysis of the submitted sample demonstrated that it is tightly braided with a compact structure. Man-made fibers which are not plaited or braided but that measure more than 10,000 decitex and do not have a twist or have a twist of less than 5 turns per meter are also classified in heading 5607, HTSUS. See HQ 957661, dated June 7, 1995. Since the merchandise at issue is plaited or braided, the decitex is not petinent to our determination. Moreover, twine, cordage, ropes and cables used for binding and tying purposes are merely examples of how such goods may be used. Id. The membranes squarely meet the terms of heading 5607, HTSUS. As such, there is no need to resort to a GRI 3 analysis. See NY 858068, dated December 6, 1990 and NY A80950, dated March 19, 1996.
Once the membranes have been secured at each end to become a module, they become a made up article of textile in accordance with Note 7(e) to Section XVI. (Defining the expression "made up" for purposes of the section, in pertinent part, as “assembled by sewing, gumming or otherwise….” There is no dispute that the ZW-500 will be used in a water treatment filtration system. Thus, we must consider whether the ZW-500 is a textile for technical uses in accordance with Note 7 to chapter 59, HTSUS.
Note 7(b) to chapter 59, HTSUS, provides:
Heading 5911 applies to the following goods, which do not fall in any other heading of section XI:
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. Consequently, the ZW-500 is a technical use article of heading 5911, HTSUS.
The ZW-500 is distinguishable from the merchandise at issue in NY L80202 and HQ 966642 as the merchandise therein consisted of plastic coated non-woven textiles which are governed by Note 1(h) to Section XI, HTSUS. Specifically, the merchandise at issue in both NY L80202 and HQ 966642 was constructed of three layers, i.e., a polyamide layer, a polysulfone layer and a non-woven polyester layer. The merchandise at issue is composed of numerous strands of polyester yarn that have been woven or braided into a straw shape and coated with a polymer cellulose blend. The differences in construction result in differences in the applicable legal notes. Therefore, the analysis in NY L80202 and HQ 966642 does not apply to this merchandise.
HOLDING:
Protest number 3801-07-100045 is denied. By application of GRI 1 and Note 1(e) to Section XVI, HTSUS, the ZW-500 is classified in heading 5911, HTSUS. It is provided for in subheading 5911.90.0080, HTSUS, which provides for “Textile products and articles, for technical uses, specified in note 7 to this chapter: Other, Other.” The column one general rate of duty at the time of entry was 3.8% ad valorem. Additionally, for the entries liquidated on July 28, 2006, the protest was untimely.
In accordance with Parts IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division