• HQ H021222
• Aug 06, 2010

• Type : Classification • HTSUS : 5911.40.0000
•  Related:   07102; 102169; 967326; 35127; H89288; 818399; D85467; 950284; E89840; 965659   

CLA-2 OT:RR:CTF:TCM H021222 JPJ

Port Director
Port of Newark
U.S. Customs and Border Protection
Protest & Control
1100 Raymond Blvd, Suite 402
Newark, NJ 07102

RE: Application for Further Review of Protest No. 4601-07-102169; Non-woven material used in milk strainers

Dear Port Director:

This is our decision regarding the Application for Further Review (“AFR”) of Protest Number 4601-07-102169, timely filed on behalf of Ahlstrom Mount Holly Springs LLC (“Ahlstrom”), concerning the classification of non-woven material used in milk strainers under the Harmonized Tariff Schedule of the United States (“HTSUS”).

On May 5, 2009, a meeting was held with protestant and members of my staff. During the meeting, protestant requested the opportunity to submit additional written argument. The request was granted, and on August 7, 2009, protestant’s submission was received. Five samples were submitted to this office for examination.

FACTS:

The merchandise at issue was entered on May 30, 2006. At the time of entry, Ahlstrom entered the merchandise under subheading 5911.40.0000, HTSUS, pursuant to Headquarters Ruling (HQ) 967326, dated December 13, 2004, which was issued to Ahlstrom and involved the same merchandise. The entry liquidated on April 13, 2007. On October 10, 2007, Ahlstrom filed a protest against the tariff classification of the merchandise in subheading 5911.40.0000, HTSUS.

The merchandise involved in HQ 967326 was described as follows:

The merchandise at issue is described as “non-woven filtration media composed of a polyester blend (with cellulose and viscose fibers) with an acrylate binding agent, which is designed for straining milk and is used in milk strainers, filter funnels, and in the vessels and tanks in the milking industry. It is specifically designed for food contact.”

Three of the samples are manufactured by a wet laid process and two of the samples are made by a paper making process with a final wood pulp content of 13%.

The merchandise is imported into the U.S. in rolls and is subsequently cut and in some cases sewn into one of two shapes. The first shape is round and is inserted as a cross section of a pipe through which milk flows to the milk storage vessel. The second shape is cut and sewn into the shape of a long, slightly tapered funnel which strains the milk as it flows to the storage tank through the pipes. ISSUE:

Whether the non-woven material used in milk strainers is classified in heading 5603, HTSUS, as a non-woven or in heading 5911, HTSUS, as a technical use fabric.

LAW AND ANALYSIS:

Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).

Further Review of Protest No. 4601-07-102169 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24(c) because the decision against which the protest was filed involves matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling.

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI’s). 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 HTSUS provisions under consideration are as follows:

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:

* * * * * * 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 fabric 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 paper-making or similar machines (for example, for pulp or asbestos-cement), gaskets, washers, polishing discs and other machinery parts).

Additional U.S. Rules of Interpretation (AUSRI) 1(a) states:

1. In the absence of special language or context which otherwise requires—

(a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the U.S. at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.

The Harmonized Commodity Description and Coding System Explanatory Notes ("EN’s") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

The EN to heading 5603, HTSUS, states, in relevant part:

Except where they are covered more specifically by other headings in the Nomenclature, the heading covers nonwovens in the piece, cut to length or simply cut to rectangular (including square) shape from larger pieces without other working, whether or not presented folded or put up in packings (e.g., for retail sale). These include: facing webs (overlay) for incorporation in laminated plastics; top-sheets for the manufacture of disposable baby napkins (diapers) or sanitary towels; fabrics for the manufacture of protective clothing or garment linings; sheets for filtering liquids or air, for use as stuffing materials, for sound insulation, for filtration or separation in road building or other civil engineering works; substrates for manufacturing bituminous roofing fabrics; primary or secondary backing for tufted carpets, etc…..

The EN to heading 5603, HTSUS, also lists exclusions which include, among other goods:

Nonwovens for technical uses, of heading 59.11.

The EN to heading 5911, HTSUS, states, in relevant part, as follows:

Straining cloth (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.

It is protestant’s position that the merchandise is classified in heading 5603, HTSUS, which provides for “[n]onwovens, whether or not impregnated, coated, covered or laminated.”

Note 7 to Chapter 59 states that heading 5911, HTSUS takes precedence over the other headings of Section XI. Accordingly, heading 5911, HTSUS, must be eliminated as a classification option before goods can be classified in heading 5603, HTSUS. Two criteria have to be satisfied for classification in heading 5911, HTSUS:

(i) the textile products must be for technical use, and (ii) they must be goods described in paragraphs (a) and (b) to Note 7.

In GKD-USA, Inc. v. United States, 931 F. Supp. 875 (Ct. Intl. Trade 1996), the Court found that there is no clearly stated Congressional intent as to the meaning of the tariff phrase “straining cloth of a kind used in oil presses or the like”, and construed the tariff terms according to their current common and commercial meaning. Id. at 879-880. The Court determined that “straining cloth” is generally referred to as “filter cloth”, and described the process of filtration, in relevant part, as “the process in which solid particles in a liquid or gaseous fluid are removed by the use of a filter medium that permits the fluid to pass through but retains the solid particles”. Id. at 880.

In GKD-USA, the Court also interpreted the phrase “of a kind used in oil presses or the like”. Id. at 880-881. The Court determined that an oil press is a machine that provides a mechanism to hold the filter medium and provides the force necessary to cause the fluid to flow. Id. The Court interpreted “oil presses or the like” to include the various presses described therein which are all used to remove liquid and retain solids by creating a pressure differential. Id. Thus, the Court determined that in order for a good to be classified in subheading 5911.40.00, HTSUS, the good must be a filter cloth used on a press “designed to separate liquids from solids through a change in pressure”. Id. Therefore, the Court did not limit “straining cloth” to a kind used on a particular type of press, but by the manner in which the separation of liquids from solids occurred (emphasis added).

In Airflow Technology, Inc. v. United States, 524 F. 3d 1287 (Fed. Cir. 2008), the Court of Appeals for the Federal Circuit held that air filter media was properly classified under subheading 5911.40.00, HTSUS. In reaching its decision, the court had the opportunity to shed light on the phrase “straining cloth of a kind used in oil presses or the like”. The court stated, in relevant part, that the plain meaning of the term “straining cloth” suggests that it refers only to products that separate solids from liquids. Id. at 1291. The court went on to say that although the terms “straining” and “filtering” carry similar meanings, they do not have identical meanings, and they differ in one critical aspect—“straining” suggests removing solids from liquids while “filtering” suggests removing solids from liquids or gases. Id. at 1292. The court concluded that the term “straining cloth” carries a different and narrower meaning than the term “filter cloth”, and that the CIT erred in finding the two terms to be interchangeable. Id. The court deduced from the plain meaning of the term that “straining cloth” encompasses only products that separate solids from liquids. Id. The court further stated that the phrase “or the like”, which means “the same, or very similar to,” clearly modifies the phrase “of a kind used in oil presses” and not the term “straining cloth”. Thus “straining cloth” must be of a kind used in oil presses or machinery that is the same or very similar to oil presses. Id. The court found that the common meaning of the phrase “of a kind used in oil presses or the like” means “of a kind used in oil presses or other mechanisms that separate solids from liquids.” (emphasis added). Id.

Ahlstrom argues that GKD-USA has no precedential value because the merchandise at issue in that case was a filter press belting made of a woven fabric, while the merchandise at issue herein is made of a nonwoven fabric (emphasis added). Ahlstrom provides definitions of “woven fabric” and “nonwoven fabric” from Fairchild’s Dictionary of Fashion (7th ed. 2008). According to that source, woven fabric is composed of two basic series of yarn: warp and filling. Weaving is the interlacing of these two yarns to form a fabric; the specific manner in which the two sets of yarns are interlaced determines the weave. Nonwoven fabric, on the other hand, contains a textile structure produced by bonding or interlocking of fibers, or both; accomplished by mechanical, chemical, thermal, or solvent means and combinations thereof (ASTM).

Ahlstrom explains that “the interlocking fibers of woven fabrics generally provide greater tensile strength than nonwovens, and, . . .are very different products than the nonwoven grades at issue”. In relation to the merchandise in GKD-USA, Ahlstrom explains that “the woven, belt filters of the GKD case were engineered to withstand use in a filter designed to extract liquids from high solids products by applying a compression force that contracts the solid(s) and wrings out the liquids from it”. Ahlstrom argues that milk is not a “high solids product”, in that in its prerefined form it generally should not be composed of any solids but is purely liquid.

Similarly, unlike the defining characteristics of filters used in oil presses “or for similar filtering purposes (e.g., in sugar refineries or breweries). . .”, Ahlstrom argues that the ENs to heading 5911 state that these filters are used to filter “high solid particles” such as the olives in oil presses, the grape skins and pulp or grain mash in beer or wine presses, and the sugar cane mash in sugar refinery presses, and to extract the liquids from these products. Ahlstrom cites Airflow for the proposition that filtration materials that are not used in the type of filters that share the essential characteristics of an oil press are excluded from classification within heading 5911, HTSUS. Ahlstrom argues that just as the court in Airflow decided against an “over-expansive” interpretation of subheading 5911.40, HTSUS, to conclude that “straining cloth” did not include air filter media, a similar broad interpretation of subheading 5911.40, HTSUS, to include the nonwovens at issue as “straining cloth of a kind used in oil presses or the like” is likewise impermissible. Ahlstrom concludes that the milk filtration methodology, the amount of pressure required, and the ultimate goal of this small segment of the market are very different from the filtration methodology used in the oil press, sugar refinery, and brewery filtration markets.

In support of their argument, Ahlstrom provides a copy of an advertisement from www.fuzing.com for an oil expeller/screw oil press, and a copy of an article about General Filtration and Beer and Wine Filters from www.generalfiltration.com. Ahlstrom argues that, unlike the filters used in oil presses and breweries, the nonwovens at issue are designed “to catch. . .a small number of random solids as in a net. . .and not to extract liquids from solids. . .” (emphasis added). Ahlstrom argues that a filter press “functions to separate the solids out of the liquids by squeezing or applying similar high pressure to the solids” (emphasis added). Ahlstrom argues that the nonwoven grades at issue “when used in a milk filter capacity, are not used in extraction processes (i.e., the solids are not pulled or pushed out forcibly and with great effort from the liquid milk)”. Based on this, Ahlstrom concludes that subheading 5911.40, HTSUS, covers straining cloth used in oil presses and in products similar to oil presses (emphasis added). Ahlstrom further argues that for the nonwovens at issue to be classifiable in heading 5911, HTSUS, they could not merely be similar to straining cloths used in oil presses or the like, but they would have to be commercially fungible with these goods. Ahlstrom argues that the primary physical characteristics of the merchandise, including the tensile strength, the basis weight, the thickness, and the permeability differ significantly and are not commercially fungible with “straining cloth of a kind used for oil presses and the like”. Ahlstrom cites United States v. Carborundum Co., 536 F.2d 373 (C.C.P.A.), cert. denied, 429 U.S. 979 (1976), and describes the differences in tensile strength, basis weight, thickness, and permeability, to conclude that its merchandise is not of the same class or kind as “straining cloth of a kind used in oil presses and the like” .

Ahlstrom has provided data that indicates that several other nonwoven grades that are not at issue herein are sold in the U.S. for use in roofing materials and in apparel manufacture. Ahlstrom cites the fiber contents, compares them to the nonwovens at issue and concludes that the class or kind of goods, that is,

“nonwoven materials made by the wetlaid process”, are very similar, despite “slight differences in component content”, which Ahlstrom believes does not “limit the potential uses of these goods” and “do[es] not restrict their end uses” (emphasis added). Ahlstrom concludes that the nonwovens at issue belong to the class or kind of goods principally used in the U.S. as reinforcing materials for apparel, and not to the class or kind of goods predominantly used in oil presses and the like. Ahlstrom cites Primal Lite Inc., v. U.S., 15 F. Supp. 2d 915 (Ct. Int’l Trade 1998), for the proposition that AUSRI 1(a) requires classification according to ordinary use, even though particular imported goods may be put to some atypical use. Ahlstrom concludes that because the total volume of nonwovens sold in the U.S. for use in apparel manufacture is more than five times that of sales for use in milk filtration, and because milk filtration is only a “subset of all the grades which have been sold in the U.S. to customers using them in apparel production”, then the use of the class or kind of merchandise to which the nonwovens at issue belong is “not as milk filters, which is an atypical use”. Therefore, Ahlstrom concludes that the merchandise at issue bears no relation to the merchandise in GKD-USA, as that merchandise is of a significantly different composition, thickness, structure, and tensile strength. Ahlstrom states that there are “no court cases that directly apply to Ahlstrom’s products, because none specifically consider the scope and application of the language of subheading 5911.40, HTSUS (and headnote 7(a)(iii) to Chapter 59, HTSUS), in relation to nonwoven filtration materials for liquids or filtration materials which are used in passive filters rather than belt filters”.

The merchandise at issue in HQ 967326, was “for straining milk and is used in milk strainers, filter funnels, and in the vessels and tanks in the milking industry. It is specifically designed for food contact.” From our internet research at www.delaval.com, we confirmed that hygiene is important in the milking industry and that milk filters are high technology food grade certified to ensure they are safe to use in contact with food. As such, they must comply with FDA regulations, as well as USDA requirements. The website also states that milk filters used in different applications require different and highly specialized fabric properties in order to perform in the most appropriate and efficient way. For example, an automatic milking system where cows are milked one after the other requires an entirely different milk filter than an 80-stand rotary system. The filters may also be specifically suited to high volume milking, and some are designed to provide an extra milk quality check to aid in the detection of milk flecks, mucous or clots in the milk following a milking session and the identification of clinical mastitis in the herd. They are used to separate solid debris such as dirt, straw, manure, hair, and insects that may enter the milking system during milking, and milk flecks, mucous or clots in the milk following a milking session.

Based on Airflow and GKD-USA, the merchandise at issue is “straining cloth” within the plain meaning of the term because the term encompasses products that separate solids from liquids, and the merchandise separates solids from liquids. As noted previously, the court in GKD-USA determined that goods of subheading 5911.40.00, HTSUS, must be a filter cloth used on a press “designed to separate liquids from solids through a change in pressure. . .” GKD-USA at 880-881 (emphasis added). Like the filter at issue in GKD-USA, the merchandise is used to separate liquids from solids by forcing the milk through the in-line filter by means of a pressure pump that carries the milk from the receiver jar through the filter and into the bulk tank. Although Ahlstrom argues that Airflow “did not address the issue of which particular liquid straining cloths are properly considered to be ‘of a kind used in oil presses or machinery that is the same or very similar to oil presses’” is mere “dicta”, and, therefore, is not controlling, we are not persuaded. We find no legal authority for Ahlstrom’s argument that the goods of subheading 5911.40.00, HTSUS, must be designed to extract liquids from solids by squeezing or applying similar high pressure.

Further, assuming arguendo, that the woven belt filters of the GKD-USA case are of a significantly different composition, thickness, structure, and tensile strength as the nonwovens at issue, according to the court in GKD-USA, the nonwovens at issue are nonetheless “straining cloth” within the meaning of Note 7 (a)(iii) to Section XI, because they are designed to separate liquids from solids through a change in pressure. Ahlstrom’s argument that the nonwovens at issue are used in the U.S. for straining milk, and sold in the U.S. for milk filtration, but that they belong to the class or kind of goods principally used in the U.S. as reinforcing materials for apparel because the total volume of nonwovens sold in the U.S. for use in apparel manufacture is more than five times that of sales for use in milk filtration is simply not a proper application of AUSRI 1(a), or of the court’s interpretation of the eo nominee term “straining cloth” in GKD-USA. Therefore, we disagree with Ahlstrom that GKD-USA has no precedential value. We believe that GKD-USA is controlling. Ahlstrom argues that the Harmonized System Committee (HSC) of the World Customs Organization (WCO) has considered the classification of the identical merchandise at issue in HQ 967326, and has already determined that it is properly classifiable in heading 5603, HTSUS. Ahlstrom argues that failure to classify the merchandise in heading 5603, HTSUS, would be contrary to the statutory goal of

maintaining certainty and consistency in international commerce, and could discourage other member states from complying with future WCO decisions. Therefore, Ahlstrom concludes that the merchandise at issue in HQ 967326 is classifiable in heading 5603, HTSUS, in accordance with a WCO Classification Opinion.

At its 39th Session, and after a lengthy exchange of views, the HSC decided by 22 votes to 12 to classify the products concerned in subheading 5603.12 or 5603.13, depending on the weight per m², by application of General Interpretive Rules 1 and 6, thereby confirming the decision taken at its 38th Session. Id. In order to give effect to this decision, the HSC instructed the Secretariat to prepare a draft Classification Opinion for examination, in the first instance, by the presessional Working Party. Id.

At its 40th Session, the Compendium of Classification Opinions was amended to include the decisions taken by the Harmonized System Committee. The following New Classification Opinion was inserted at page XI/1 E:

“5603.12 or 5603.13 1. Nonwovens manufactured using the wet-laid process, consisting of a mixture of man-made fibres of different thicknesses and cellulose fibres (10 to 35%), impregnated together with an acrylate binding agent, weighing between 60 and 80 g per m² and put up in rolls between 100 and 1500 mm wide; these products may be used in a wide variety of applications including for the manufacture of disposable milk filters, waistbands for garments, backing material for embroidery, and sole material for shoes.

Application of GIRs 1 and 6.”

The merchandise described in the WCO Classification Opinion cited above are products that “may be used in a wide variety of applications including for the manufacture of disposable milk filters, waistbands for garments, backing material for embroidery, and sole material for shoes” and could not be regarded as textile products for technical uses, of heading 5911, HTSUS. The description of the merchandise that Ahlstrom provided in its submission and found in HQ 967326 is of

a product “designed for straining milk and . . . used in milk strainers, filter funnels, and in the vessels and tanks in the milking industry. It is specifically designed for food contact”. In addition, Ahlstrom has provided wetlaid nonwoven data that confirms that the merchandise at issue in HQ 967326, nonwoven grades K804 60 00; K804 80 00; K628 80 30; K620 80 00; and K622 60 00 are designed for straining milk, are made by Ahlstrom Tempere (Finland), and are sold in the United States for milk filtration.

As previously stated, if the merchandise is classifiable in heading 5911, HTSUS, it cannot be classified in heading 5603, HTSUS. See Note 7 to Section XI. Heading 5911, HTSUS, is a “use” provision. Because the principal use of the product imported into the U.S. is as milk strainers which meets the terms of Note 7(a)(iii) to Section XI, the merchandise is classified in heading 5911, HTSUS, and cannot be classified in heading 5603, HTSUS. See AUSRI 1(a). In the WCO Classification Opinion, the WCO classified merchandise with no principal use at or before importation and used in a wide variety of applications including for the manufacture of disposable milk filters, waistbands for garments, backing material for embroidery, and sole material for shoes in heading 5603, HTSUS. The HSC decision is not applicable here because the evidence shows the principal use of the nonwoven at issue is as a technical use fabric.

In addition, CBP has a long history of administrative precedent classifying various types of filter materials, including non-woven filter material to be made into milking machine filters, as technical use fabrics under subheading 5911.40.0000, HTSUSA. See NY H89288, dated April 8, 2002; NY 818399, dated February 8, 1996; NY D85467, dated December 14, 1998; HQ 950284, dated March 19, 1992; NY E89840, dated November 9, 1999; and HQ 965659, dated August 27, 2002.

Accordingly, the non-woven filtration material is classified in subheading 5911.40.00, HTSUS, which provides for “…straining cloth of a kind used in oil presses or the like….”

HOLDING:

The non-woven filtration material is classified in subheading 5911.40.00, HTSUS, 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 2006 general column one rate of duty was 8 percent ad valorem.

Protest No. 4601-07-102169 is DENIED. In accordance with Sections 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 entry in accordance with this decision must be accomplished prior to the mailing of 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