CLA-2 OT:RR:CTF:TCM H240508 ALS
Port Director
U.S. Customs and Border Protection
726 Exchange Street
Buffalo, New York 14210
ATTN.: Ms. Kristine Dodge
RE: Application for Further Review of Protest No. 0901-12-100311; Tariff classification of Tubular Weft Knit Synthetic Fabric
Dear Port Director:
This letter is in reply to the Application for Further Review (“AFR”) of Protest number 0901-12-100311, filed October 16, 2012, on behalf of Zodiac Fabrics Company (“Zodiac” or “Protestant”). The Protest is against U.S. Customs and Border Protection’s (“CBP’s”) tariff classification of tubular weft knit synthetic fabric as a narrow knit fabric under subheading 6003.30.60 of the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The article at issue is a tubular weft knit fabric of synthetic fibers. It is imported in rolls and open and unfinished at each end, ready to be cut to length as needed. It measures approximately three feet in length and 26 centimeters in width in its flattened condition. Although the fabric is knitted in Canada, the yarn used to produce this fabric is non-originating.
After importation, the subject merchandise is slated to be incorporated into a finished sock filter, which is placed around the exterior of perforated drainage hose systems to prevent sediment from getting into drainage pipes so that water may flow through the pipes uninterrupted. The Protestant describes its finished sock filter as “style FL-04185, 6” sock filter, regular black,” with six inches being equal to 15.24 centimeters.
The subject article was entered under three separate entries as a “textile article for technical uses” of HTSUS subheading 5911.90.00. The Port issued two proposed Notices of Action on February 27, 2012, which collectively covered the three entries. The three entries had been filed on October 2, 2011, October 26, 2011, and January 10, 2012, respectively. On April 3, 2012, the Port issued two final Notices of Action and rate advanced the three entries under HTSUS subheading 6003.30.60. The April Notices notified Zodiac that since it had not submitted an amended North American Free Trade Agreement (NAFTA) Certificate of Origin, its claim for NAFTA preferential duty treatment was denied. In the event that CBP classifies the fabric at issue here under HTSUS heading 6003, Zodiac has submitted certificates of eligibility along with the Protest.
ISSUES:
1) Is the fabric described above properly classified under heading 5911, HTSUS or under heading 6003, HTSUS?
2) Are the subject entries eligible for NAFTA preferential duty treatment?
LAW AND ANALYSIS:
Initially, CBP notes that the Protest was timely filed on October 16, 2012, which is within 180 days of the oldest liquidation date of April 27, 2012. See 19 U.S.C. §1514(c)(3). Additionally, CBP’s classification of the merchandise is a protestable matter under 19 U.S.C. §1514(a)(2). Further Review of Protest No. 0901-12-100311 is properly accorded to the Protestant pursuant to 19 CFR 174.24(a) because it is alleged to be inconsistent with certain port decisions, including decisions made by the Port of Buffalo in October 2011.
Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRI”) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation (“ARI”). GRI 1 provides that the classification of goods shall be “determined according to the terms of the headings 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, GRIs 2 through 6 may be applied in order.
The following headings of the 2011 HTSUS, Revision 1, are under consideration in this case:
5911 Textile products and articles, for technical uses, specified in note 7 to this chapter:
6003 Knitted or crocheted fabrics of a width not exceeding 30 cm, other than those of heading 6001 or 6002:
Notes 7(a)(iii) and 7(b) to Chapter 59 read as follows:
7. 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:
(iii) Straining cloth of a kind used in oil presses or the like, of textile material or of human hair;
* * *
(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).
Heading 5911 covers textile fabrics as described in Note 7(a) to HTSUS Chapter 59 and also covers finished textile articles as described in Note 7(b) to HTSUS Chapter 59.
Note 1 to Chapter 59 reads as follows:
1. Except where the context otherwise requires, for the purposes of this chapter the expression "textile fabrics" applies only to the woven fabrics of chapters 50 to 55 and headings 5803 and 5806, the braids and ornamental trimmings in the piece of heading 5808 and the knitted or crocheted fabrics of headings 6002 to 6006.
GRI 2(a) reads as follows:
2. (a) Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled.
GRI 3(a) reads as follows:
3. When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
The protestant asserts that the article at issue is classifiable under either HTSUS subheading 5911.40 as straining cloth, or under HTSUS subheading 5911.90.00 as a textile article for technical use, citing Note 7(b) of Chapter 59 and GRI 2(a). The protestant contends that the subject article is classifiable by its essential character, and claims that its essential character is that of “a specially designed textile article.” The protestant also contends that heading 5911 should prevail over heading 6003 in this context because heading 5911 provides a more specific description of the article in accordance with GRI 3(a).
The protestant refers to the Explanatory Notes of the Harmonized Commodity Description and Coding System (“ENs”) for heading 5911 for a definition of the term “technical use.” As the protestant acknowledges, heading 5911 does not provide a definition for “technical use.” Neither does the EN for heading 5911, but the protestant points to the definition for “straining cloth” under that EN, which the protestant quotes as such:
(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.
The protestant contends that this definition is consistent with HTSUS subheading 5911.40 in that the subheading covers “straining cloth of a kind used in oil presses or the like.” The protestant argues that the language “or the like” indicates that straining cloths other than those used in oil presses are classifiable under 5911.40. The protestant cites GKD-USA, Inc. v. United States, 20 CIT 749 (1996), to note that the Court of International Trade has found that “straining cloth” is generally referred to as “filter cloth” and that “straining cloth is a type of filter medium required for the process of filtration.”
The Protestant also asserts that CBP’s classification of the article is inconsistent with prior CBP rulings, which concern the same or substantively similar merchandise, specifically CBP Ruling HQ H023360 (October 27, 2010); CBP Ruling HQ H021222 (August 6, 2010); CBP Ruling NY N053553 (April 2, 2009); CBP Ruling HQ H011194 (April 18, 2008); CBP Ruling HQ 967194 (May 24, 2005); and CBP Ruling HQ 958415 (March 26, 1996). However, we note that in all of these rulings, the subject cloth was used on machines. As such, they are distinguishable from the instant merchandise.
Among the cases cited by the Protestant, CBP Ruling HQ H021222 (August 6, 2010) is distinguished from the present case in that CBP ruled that the article in HQ H021222, a non-woven filtration media of polyester blend, was classifiable under heading 5911 because that article “is ‘straining cloth’ within the plain meaning of the term because the term encompasses products that separate solids from liquids, and the merchandise [at issue in HQ H021222] separates solids from liquids.” It was not a filter cloth.
The proposed use of the subject article does not suggest that the article will be “used in oil presses or machinery that is the same or very similar to oil presses,” as Airflow clearly finds is required of an article to be classified as a straining cloth under heading 5911. In reaching its conclusion, the Federal Circuit in Airflow noted the following:
The Court of International Trade [in Airflow Technology, Inc. v. United States, 483 F. Supp.2d 1337 (CIT 2007)] held that the term "straining cloth" in subheading 5911.40.00 was not limited to filters used to separate solids from liquids. In doing so, it relied on its earlier decision in GKD-USA, Inc. v. United States, 931 F.Supp. 875 (Ct. Int'l Trade 1996), for a definition of the term "straining cloth." In the earlier GKD opinion, the court determined that the term "straining cloth" was not defined in the statute or in the legislative history, and therefore looked to the common meaning of the term. Id. at 879-80. Looking to the common usage of the term, the court found that "straining cloth" was generally referred to as "filter cloth," and that the ordinary meaning of the latter term applied equally to the former term. Id. at 880…
…We conclude that the term "straining cloth" carries a different and narrower meaning than the term "filter cloth," and that the Court of International Trade erred in finding the two terms to be interchangeable. If the drafters wanted the subheading to encompass cloths that either separate solids from liquids or separate solids from gases, they could have used the broader term "filtering cloth." We conclude from the plain meaning of the term that "straining cloth" encompasses only products that separate solids from liquids.
Therefore, the Protestant’s reliance on GKD-USA, Inc. v. United States in this case is misguided and clearly inconsistent with the Federal Circuit’s ruling in Airflow, to the extent that the Protestant argues that a filtering cloth is classifiable under HTSUS subheading 5911.40.
The subject article is more similar to the lint filter CBP ruled upon in CBP Ruling NY 872181 (March 20, 1992). The lint filter in NY 872181 was also a passive device that was fitted onto the end of a pipe to be a barrier against debris clogging the pipe. Referring again to HQ H021222, citing Airflow, we also stated the following in that case:
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.
The subject merchandise is a passive device and is not used in any device that is similar to an oil press or the like. Therefore, the subject merchandise is not classifiable under heading 5911, HTSUS.
As noted above, HTSUS heading 6003 covers knitted or crocheted fabrics of a width not exceeding 30 cm, other than those of heading 6001 or 6002, and HTSUS heading 5911 covers textile products and articles, for technical uses, specified in note 7 to chapter 59. The subject fabric meets the definition of other synthetic knitted fabrics of a width not exceeding 30 centimeters, other than those of heading 6001 or 6002, as provided for under HTSUS subheading 6003.30.60, being that it is knitted, is a synthetic fabric, and is 26 centimeters in width. The unfinished fabric is not a pile fabric of heading 6001 or a knitted fabric of a width not exceeding 30 centimeters that contains by weight five percent or more of elastomeric yarn or rubber thread, as the subject fabric does not exceed 30 centimeters in width, is knitted, and is of synthetic fibers. Therefore, given the foregoing, we find the subject Tubular Weft Knit Synthetic Fabric to be properly classified under HTSUS subheading 6003.30.60 as “Knitted or crocheted fabrics of a width not exceeding 30 cm, other than those of heading 6001 or 6002: Of synthetic fibers: Other.”
With respect to the Protestant’s claim that NAFTA preferential duty rates are applicable to the subject entries, you acknowledge such and agree with the Protestant. We find that our analysis regarding tariff preference level certificates of eligibility in CBP Ruling HQ 965827 (November 5, 2002) applies here as well and we incorporate such here by reference. Thus, we also agree that NAFTA preferential duty rates are applicable to the subject entries.
HOLDING:
The Tubular Weft Knit Synthetic Fabric is properly classified under HTSUS subheading 6003.30.60, which provides for “Knitted or crocheted fabrics of a width not exceeding 30 cm, other than those of heading 6001 or 6002: Of synthetic fibers: Other.” The general column one rate of duty, for merchandise classified in this subheading is 7.6 percent ad valorem. Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
NAFTA preferential duty rates are applicable to the subject entries and should be applied accordingly.
The Protest should be DENIED with respect to the legal tariff classification of the subject article. The Protest should be GRANTED only with respect to the applicability of the NAFTA preferential duty rate to the subject entries. A copy of this ruling should be attached to the CBP Form 19 and provided to the protestant as part of the notice of action on the protest.
Sixty days from the date of the decision the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on 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