HQ 965659

August 27, 2002

CLA-2 RR:CR:TE 965659 mbg

CATEGORY: Classification

TARIFF NO.: 5911.40.0000

Port Director

U.S. Customs Service

Port of Cleveland

6747 Engle Road

Middleburg Heights, OH 44130

RE: Decision on Application for Further Review of Protest No.

4102-01-100037, classification of textile materials for technical use

Dear Port Director:

This is a decision on an application for further review of a protest
timely filed by Toyobo Sterns Co., Ltd. of Cincinnati, Ohio. Counsel for
Protestant filed Customs Form 19 ("PROTEST"), dated October 17, 2001,
against your decision regarding the classification under the Harmonized
Tariff Schedule of the United States Annotated ("HTSUSA") for a textile
material for technical use.

FACTS:

Protestant has provided that the merchandise at issue consists of air
filtering materials for use in automotive engines. The materials are
imported in two different grades which are designated as "241-USNV" and
"Bonden 257." Both are made in Japan of man-made nonwoven fabric with
the same appearance and texture, however, the 241-USNV material is
produced using an adhesive or chemical bonding process while the Bonden
257 material is produced using a thermal bonding process. During the
manufacturing process, an acrylic binder is added to the filter
materials to act as a stiffening agent. The materials are imported into
the U.S. in continuous rolls, are not laminated and weigh more than 150
grams per square meter. The imported merchandise is used exclusively to
manufacture air filters for use in engines.

Protestant has provided that the manufacture of the merchandise referred
to as 241-USNV is produced in two primary stages consisting of
web-formation and bonding. The process entails the use of compressed
bales of rayon, polyester and acrylic staple fibers of differing deniers
which are used in a dry-laid carding process to form a web. Protestant
has provided a detailed description of a typical nonwoven bonding
process which is utilized in the construction of the subject
merchandise.

Protestant has also provided that the manufacture of the merchandise
referred to as Bonden 257 is produced in two primary stages consisting
of web-formation and bonding. The process begins with compressed bales
of either single polymer polyester fibers or bicomponent polyester
fibers of differing deniers which are used in a dry-laid carding process
to form a web. Protestant has also provided a detailed description of a
typical nonwoven bonding process which is utilized in the construction
of the subject merchandise.

Protestant provides that Toyobo sells the completed non-woven materials
to an automotive parts manufacturer for use in the production of
automobile air filters and therefore the material must be pleated into a
rectangular or round accordion style shape. To accomplish this, the
material is cut to length and width and fed through a pleating machine
that utilizes heat and pressure to form the actual pleats which is then
framed with a hard plastic form.

Protestant contests Customs classification of the subject merchandise in
heading 5911, HTSUSA as a material for technical use and contends that
such classification is improper because the subject merchandise is
imported in continuous rolls and therefore cannot be subject to Legal
Note 7 (b) which applies to heading 5911. Furthermore, Protestant claims
that the merchandise is not properly classified as a textile material
for technical use because the subject merchandise is not woven and is
used for the filtration of air rather than for separating solids from
liquid as other filtration devices previously classified in heading
5911, HTSUSA. Protestant asserts that classification of the subject
merchandise is proper under heading 5603, HTSUSA, as a nonwoven
material.

ISSUE:

What is the proper classification for the subject merchandise under the
HTSUSA?

LAW AND ANALYSIS:

**[I. CLASSIFICATION UNDER THE HTSUSA]{.underline}**

Classification of goods under the HTSUSA is made in accordance with the
General Rules of Interpretation (GRI). GRI 1 provides, in part, that
classification decisions are to be "determined according to the terms of
the headings and any relative section or chapter notes." In the event
that 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") represent the official interpretation of the Harmonized System at
the international level (for the 4 digit headings and the 6 digit
subheadings) and facilitate classification under the HTSUSA by offering
guidance in understanding the scope of the headings and GRI. The EN,
although not dispositive or legally binding, provide a commentary on the
scope of each heading of the HTSUS, and are generally indicative of the
proper interpretation of these headings. [See]{.underline} T.D. 89-80,
54 Fed. Reg. 35127, 35128 (August 23, 1989).

The two headings under consideration for the subject Protest are heading
5603, HTSUSA, which provides for, nonwovens, whether or not impregnated,
coated, covered or laminated; and heading 5911, HTSUSA, which provides
for textile products for technical uses.

Determination of the HTSUSA classification of the subject merchandise in
either of the subject headings requires an understanding of terminology
which is germane to the issue and utilized by the HTSUSA. It is a well
established tenet of customs law that tariff terms are construed in
accordance with their common and commercial meanings and that the common
meaning of a tariff term is a question of law. [Toyota Motor Sales,
U.S.A., Inc. v. United States]{.underline}, 7 Ct. Int'l Trade 178, 182,
585 F.Supp 649 (1984), [aff'd]{.underline}, 753 F.2d 1061 (Fed.Cir.
1985). Essential to the determination of this classification issue is an
understanding of the term "in the piece" which is commonly used in the
HTSUSA and the textile industry and which Protestant claims renders
classification in heading 5911 not applicable for classification of the
subject merchandise because the material is imported in "continuous
rolls."

> [Piece]{.underline}- A standard length of fabric, such as 40, 60, 80,
> or 100 yards. [Dictionary of Fiber and Textile
> Technology]{.smallcaps}, 140 (7^th^

ed. 1999).

> [Piece-]{.underline} A specified length of goods as rolled from loom
> for dying or finishing: 60 yards, 30 yards, etc. Buying "by the piece"
> or "half piece" means buying a part or all of the full length as
> determined in the manufacture of the various fabrics. [A Dictionary of
> Costume and Fashion]{.smallcaps}, Mary Brooks Picken, 250 (1985).
>
> [Piece]{.underline}- A standard length of woven fabric varying from 24
> yards to 100 yards according to type of fabric[. Fairchild's
> Dictionary of Textiles,]{.smallcaps} 435 (2^nd^ ed. 1970).

Protestant's assertion that the importation of the merchandise in rolls
affects classification is incorrect. The term "in the piece" actually
refers to importation of textiles in "continuous rolls" and is
applicable to the subject merchandise whether classified in either
heading 5603 or 5911, HTSUSA.

**[A. HEADING 5603, HTSUSA]{.underline}**

Legal Note 3 to chapter 56, HTSUSA, states:

> Heading 5603 cover\[s\] respectively felt and nonwovens, impregnated,
> coated, covered or laminated with plastics or rubber whatever the
> nature of these materials (compact or cellular).
>
> Heading 5603 also includes nonwovens in which plastics or rubber forms
> the bonding substance.

Heading 5603 do\[es\] not, however, cover:

> \(a\) Felt impregnated, coated, covered or laminated with plastics or
> rubber, containing 50 percent or less by weight of textile material or
> felt completely embedded in plastics or rubber (chapter 39 or 40);
>
> \(b\) Nonwovens, either completely embedded in plastics or rubber, or
> entirely coated or covered on both sides with such materials, provided
> that such coating or covering can be seen with the naked eye with no
> account being taken of any resulting change in color (chapter 39 or
> 40); or
>
> \(c\) Plates, sheets or strip of cellular plastics or cellular rubber
> combined with felt or nonwovens, where the textile material is present
> merely for reinforcing purposes (chapter 39 or 40).

The Explanatory Notes to the Harmonized Commodity Description and Coding
System (EN) to heading 5603, HTSUSA, state in pertinent 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, HTSUSA, further state that nonwovens can be
produced in various ways and production can be conveniently divided into
the three stages: web formation, bonding and finishing.

Additionally, the EN for heading 5603 states:

This heading also **excludes**:

(ij) Nonwovens for technical uses, of heading **5911.**

**[B. HEADING 5911, HTSUSA]{.underline}**

Protestant contends that heading 5911, HTSUSA, is not applicable for the
subject merchandise because the materials are used in automobile air
filters to separate solids from air rather than solids from liquids and
therefore are not appropriate for classification as materials for
technical use.

Heading 5911, HTSUSA, provides for textile products and articles for
technical uses so long as they are specified in Legal Note 7 to Chapter
59, HTSUSA. Legal 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 human hair;
>
> \(iv\) Flat woven textile fabrics 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
> papermaking or similar machines (for example, for pulp or
> asbestos-cement), gaskets, washers, polishing discs and other
> machinery parts).

Although the term "for technical uses" is not defined in the section or
chapter notes, the ENs to heading 5911, HTSUSA, state that "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."

However, the ENs to heading 5911 do provide definitions for various
types of textile articles and products used for specific technical
textile purposes. The EN to heading 5911, HTSUSA, describe \"straining
cloths\" as:

> (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 language in the tariff schedule qualifies the types of straining
cloths classifiable in this subheading as those \"of a kind used in oil
presses or the like.\" However, a careful reading of the language used
in subheading 5911.40, HTSUSA, reveals that there is no requirement that
the straining cloths in this provision be used in oil presses; rather,
the term \"or the like\" is used which serves to broaden the types of
straining cloths that are properly classifiable here. This language
indicates that the drafters of the tariff schedule have included in
their definition of \"straining cloth\" a much broader range of articles
than those that are merely used in oil presses. Thus, according to the
EN, straining cloths specifically include filter fabrics used for
technical applications in machinery such as utilized for automotive air
filters.

Protestant further asserts that the controlling legal case from the
Court of International Trade is inappropriate for application to the
subject merchandise because the [GKD]{.underline} decision is only
applicable to filtering materials which separate solid from liquid. The
classification of filtration materials was addressed by the Court of
International Trade ("CIT") in [GKD-USA, Inc. v. United
States]{.underline}, 20 Ct. Int'l.Trade. 749 (1996) wherein the Court
reviewed the classification of sludge dewatering filtering belts
imported in material lengths. In [GKD]{.underline}, the CIT consulted
various lexicographic sources and determined 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."
[GKD]{.underline} at 755. The Court further agreed with Customs that the
language "or the like" found in subheading 5911.40 was broad enough to
include a range of articles other than the oil presses which are *eo
nomine* provided in the subheading. [Id.]{.underline} at 758.

Customs disagrees with Protestant's claim regarding the application of
the [GKD]{.underline} decision to the subject merchandise. The CIT did
not limit the scope of subheading 5911.40, HTSUSA, to strictly the
filtration of solids from liquid and the court's decision is consistent
with the definition provided in the ENs which is clearly broad enough to
also include materials used for filtering solids from air. In affirming
Customs classification of merchandise at issue in [GKD]{.underline},
which is similar to the subject merchandise, within subheading
5911.40.0000, HTSUSA, the CIT set a precedent applicable to filter
materials of all types.

The ENs to heading 5911, HTSUSA, specifically refer to filter fabrics
used for filtering purposes including gas cleaning and dust collecting.
The subject merchandise is therefore covered by the controlling
[GKD]{.underline} decision as well as the ENs to heading 5911, HTSUSA.

Furthermore, Customs has consistently classified various types of filter
materials, similar to the subject material, as technical use fabric
under subheading 5911.40.0000, HTSUSA. Protestant has claimed that
subheading 5911.40, HTSUSA, is inappropriate for the subject merchandise
because it filters solids from air rather than solids from liquids.
However, in Headquarters Ruing letter ("HQ") 955244, dated April 4,
1994, Customs classified filter materials which are specifically
designed to filter air rather than solids from liquids in subheading
5911.40, HTSUSA.

In HQ 958415, dated March 26, 1996, a nonwoven filter material made of
100 percent polyester, used in desalination, chemical and waste
treatment filtration operations, was classified as technical use fabric
of subheading 5911.40.0000, HTSUSA. In HQ 954138, dated June 15, 1993,
we classified air filter media made of a spunbonded nonwoven component
and batting material as a technical use fabric of subheading
5911.40.0000, HTSUSA. [See also]{.underline} HQ 950167, dated March 13,
1992, wherein Customs ruled that a diffusion filter fabric made of 100
percent polyester fibermat was classifiable as a technical use fabric.

Based on the established precedent provided by the Court of
International Trade and prior Customs rulings as well as the ENs,
Customs finds that the subject nonwoven material is properly classified
in subheading 5911.40.0000, HTSUSA.

HOLDING:

The subject merchandise is classified in subheading 5911.40.0000,
HTSUSA, as "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 general column one duty
rate is 9 percent *ad valorem*.

The protest should be DENIED. In accordance with Section 3A(11)(b) of
Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised
Protest Directive, you are to mail this decision, together with the
Customs Form 19, to the protestant no later than 60 days from the date
of this letter. Any reliquidation of the entry or entries in accordance
with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and
Rulings will make the decision available to Customs personnel, and to
the public on the Customs Home Page on the World Wide Web at
www.customs.gov, by means of the Freedom of Information Act, and other
methods of public distribution.

> Sincerely,

Myles Harmon, Acting Director

> Commercial Rulings Division