Application for Further Review of Protest No. 1703-14-100267; Classification of nonwoven filter pockets

HQ H262243 January 24, 2018 CLA-2 OT:RR:CTF:TCM H262243 GA CATEGORY: Classification TARIFF NO.: 5911.90.00 U.S. Customs and Border Protection 1 East Bay St. Savannah, GA 31401 Attn: SIS Brendaliz Castro RE: Application for Further Review of Protest No. 1703-14-100267; Classification of nonwoven filter pockets Dear Port Director: This is in reference to the Application for Further Review (“AFR”) of Protest No. 1703-14-100267, timely filed on October 17, 2014, on behalf of Freudenberg Filtration Technologies LP. (“FFT”). The Protest and AFR is against U.S. Customs and Border Protection’s (CBP) classification of nonwoven filter pockets under 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.” A sample of the merchandise was submitted with your request. In reaching our decision, CBP also considered the protestant’s supplemental submission dated April 28, 2015. FACTS: The Protestant described the subject merchandise as “nonwoven pockets, imported for production into finished filters” manufactured in Germany: They are imported in three standard sizes measured by width and depth in inches: 24 x 26, 12 x 26, and 24 x 18. In their imported condition, they are rectangular in shape. The pockets consist of two layers of high loft polyester or polypropylene nonwoven staple fiber fabric ranging in weight from 70 to 130 grams per square meter, each fabric layer formed by thermal bonding. The pockets are formed in a 2-step process. Two nonwoven media rolls are loaded onto a machine that simultaneously welds them together on the top and bottom edges and die cuts them to width. The pockets are rotated in the same machine and simultaneously welded on the third side and cut to length. The second step is to weld diamond-shaped nonwoven spacers into the pocket parallel to the long edge of the pocket at of (sic) approximately 4.75 inches. These spacers restrict the two nonwoven pocket layers from pulling apart beyond a fixed measurement. The entire process takes approximately 30 seconds and results in production of 120 pockets per hour…. After importation, the importer combines the different sizes of pockets into various configurations, and molds them into plastic housing frames to become finished air filters for ultimate use in heating, ventilating and air conditioning (“HVAC”) systems, which improve indoor environmental comfort. After domestic manufacture, the pockets become known in the industry as “pocket filters”. At the time of importation, the pockets are not suitable for use in air filtration systems. In order to be used for their ultimate purpose, they must be combined with other pockets and molded into a plastic header. It is the header that is clamped into a steel frame wall within an air filter housing unit. Without the header, the pockets are not capable of being installed in an HVAC system or held in place. Moreover, the imported pockets are not specific to any particular HVAC system end use at the time of importation. The particular filter configuration that may be used in any given HVAC system depends on the size of its air vents and the size of the space around the unit to accommodate the filters. Often multiple standard size filters are combined to best serve an HVAC system based on the size of the space in which the system is housed. The filters are produced in five standard sizes to allow for various combination options. The pockets are produced in three standard sizes to fit into these five standard filters. The pockets are imported in an unfinished state. To produce the finished filters post-importation, a rectangular metal bar is placed in the injection molding station and individual pockets are placed over a metal rake with the open ends facing the metal bar frame. Typically five to twelve pockets are placed in the molding station side by side. The injection mold clamshell frame is closed and clamped. A 2-part polyurethane foaming resin is injected into the cavity of the molding tool around the rectangular metal bar. The resin encapsulates the open edges of all of the pockets and the metal bar. After the resin sets, the mold is unclamped and the pocket filter is removed. The edges are manually trimmed of excess resin residue and the filter is manually cleaned with a high pressure air hose and inspected. A rubber gasket is manually attached to all four sides of the resin header to ensure that no air escapes between the filter header and the steel frame into which each pocket is inserted in the HVAC system. The entire filter production process takes approximately 4 to 4.5 minutes and results in production of 12 pocket filters per hour. Although the protestant describes the filter pockets as rectangular in shape, the samples submitted have a trapezoidal shape, in that they do not have four right angles at the corners. Although the protestant describes the dimensions of the filter pockets above, the sample examined measured as follows: the open end is 24.5”, the parallel edge opposite the open end is 22.5”, the two sides (flaring out from the closed edge to the open end are each 20” in length. The subject merchandise was entered on June 13, 2013 and liquidated on April 25, 2014, under subheading 5911.90.00, HTSUS, which provides for “Textile products and articles, for technical uses, specified in note 7 to this chapter: Other.” Protestant filed its protest on October 17, 2014, claiming that the correct classification for the nonwoven filtration pockets is subheading 5603.94.90, HTSUS, which provides for “Nonwovens, whether or not impregnated, coated, covered or laminated: Other: Weighing more than 150 g/m2: Other: Other….” ISSUE: Whether the nonwoven filter pockets are classified under heading 5603, HTSUS, as nonwoven fabric, or under heading 5911, HTSUS, as textile articles for technical uses. 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 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. 1703-14-100267 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or the by the Customs courts. Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5. The 2013 HTSUS headings and notes under consideration are the following: 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: Section XI, note 7 of the HTSUS, defines the term “made up” for the purposes of the section, as follows: For the purposes of this section, the expression “made up” means: (a) Cut otherwise than into squares or rectangles; (b) Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working (for example, certain dusters, towels, tablecloths, scarf squares, blankets); (c) Hemmed or with rolled edges, or with a knotted fringe at any of the edges, but excluding fabrics the cut edges of which have been prevented from unravelling by whipping or other simple means; (d) Cut to size and having undergone a process of drawn thread work; (e) Assembled by sewing, gumming or otherwise (other than piece goods consisting of two or more lengths of identical material joined end to end and piece goods composed of two or more textiles assembled in layers, whether or not padded); or (f) Knitted or crocheted to shape, whether presented as separate items or in the form of a number of items in the length. The above reflects Sections XI, note 7 in 2013. In the current HTSUS, paragraph (e) above is now paragraph (f), however in the analysis it is referred to as (e), in accordance with the HTSUS at the time of entry of the subject merchandise. Note 7 to Chapter 59, HTSUS, provides, in relevant part, 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: (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 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). 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 or dispositive, the ENs 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 (August 23, 1989). EN 56.03, provides, in relevant part, as follows: A nonwoven is a sheet or web of predominantly textile fibres oriented directionally or randomly and bonded. These fibres may be of natural or man-made origin. They may be staple fibres (natural or man-made) or man-made filaments or be formed in situ. 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.; handkerchiefs, bed linen, table linen, etc. The heading also excludes: (i) Nonwovens for technical uses, of heading 59.11 EN 59.11, provides, in relevant part, as follows: The textile products and textiles 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. The heading includes, in particular, those textile articles which are excluded from other headings and directed to heading 59.11 by any specific provision of the Nomenclature (for example, Note 1(e) to Section XVI)…. (A) TEXTILE FABRICS AND OTHER TEXTILE PRODUCTS, FOR TECHNICAL USES, IN THE PIECE, CUT TO LENGTH OR SIMPLY CUT TO RECTANGULAR (INCLUDING SQUARE) SHAPE Provided they do not have the character of the products of heading 59.08 to 59.10, these products are classified here (and not in any other heading of Section XI), whether in the piece, cut to length or simply cut to rectangular (including square) shape. This group covers only the textile fabrics and other textile products as defined in Note 7(a) to the Chapter, and listed at (1) to (6) below. (1) Textile fabrics, felt and felt-lined woven fabrics, coated, . . . . (2) Bolting cloths…. (3) Straining cloth…. (4) Flat woven…. (5) Textile fabrics, reinforced with metal, of a kind used for technical purposes…. (6) Cords, braids…. (B) TEXTILE ARTICLES OF A KIND USED FOR TECHNICAL PURPOSES All textile articles of a kind used for technical purposes (other than those of headings 59.08 to 59.10) are classified in this heading and not elsewhere in Section XI (see Note 7(b) to the Chapter); for example: (1) Any of the fabrics of (A) above which have been made up (cut to shape, assembled by sewing, etc.), for example, straining cloths for oil presses made by assembly of several pieces of fabric; bolting cloth cut to shape and trimmed with tapes or furnished with metal eyelets or cloth mounted on a frame for use in screen printing. (2) 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) (excluding machinery belts of heading 59.10). (3) Articles formed of linked monofilament yarn spirals and having similar uses to the textile fabrics and felts of a kind used in paper?making or similar machines referred to in (2) above. (4) Gaskets and diaphragms for pumps, motors, etc., and washers (excluding those of heading 84.84). (5) Discs, sleeves and pads for shoe polishing and other machines. (6) Textile bags for oil presses. (7) Cords cut to length, with knots, loops, or metal or glass eyelets, for use on Jacquard or other looms. (8) Loom pickers. (9) Bags for vacuum cleaners, filter bags for air filtration plant, oil filters for engines, etc. The textile articles of this heading may incorporate accessories in other material provided the articles remain essentially articles of textile. The filter pockets are beyond the scope of classification as nonwovens of heading 5603, HTSUS. This is supported by the ENs to heading 5603. The filter pockets are not “in the piece, cut to length or simply cut to rectangular (including square) shape from larger pieces”, instead they are cut in trapezoidal shapes. The filter pockets are not “without other working.” Instead they are welded on three sides, and have diamond-shaped nonwoven spacers welded into the pocket parallel to the long edge of the pocket. Moreover, as they are classifiable in heading 5911, as discussed below, they are precluded from classification in heading 5603, HTSUS. Heading 5911 covers textile products and articles, for technical uses, specified in note 7 to Chapter 59. Per the above legal text and ENs, heading 5911, HTSUS, covers both textile products and fabrics identified in note 7(a) to Chapter 59 and clarified in EN 59.11 (A) as well as textile articles of a kind used for technical uses identified in note 7(b) to Chapter 59 and clarified in EN 59.11 (B). We find the filter pockets to be textile articles in accordance with note 7 (b) to Chapter 59, HTSUS. Note 7(b) does not require that the article be composed of a textile of Note 7(a). Further we find the filter pockets to be for technical uses, in accordance with note 7(b) to Chapter 59, HTSUS. The nine listed examples of articles in the EN (B) to 59.11 are listed as examples, and are not exhaustive of what is covered by note 7(b). The instant filter pockets will be used in air filtration. Post importation, the filter pockets are molded into plastic housing frames to become finished air filters for ultimate use in heating, ventilating and air conditioning (“HVAC”) systems. Air filtering has been consistently held to be a technical use, for purposes of heading 5911, and note 7(b). See HQ 968009, dated April 6, 2006, and HQ 966083, dated June 19, 2003. Moreover, the numerous rulings cited by the protestant of articles that are classified in heading 5911, HTSUS, in its Appendix “B” that the protestant asserts are distinguishable, make it clear that air filtration is considered a technical use of heading 5911, HTSUS. See for example N247539, dated December 6, 2013, and N239632, dated April 12, 2013, even if air filters are not specifically listed in EN (B) to 59.11, as examples. However we note that (9) lists “bags for vacuum cleaners, filter bags for air filtration plant, oil filters for engines, etc.” supporting air filtration as a technical use. In Airflow Technology v. United States, 804 F. Supp 2d 1292 (Ct. Int’l Trade 2011), the court addressed the classification of a filter media (Sperifilt), and the application of Chapter 59, note 7 to the Sperifilt. In Airflow, the court stated that with respect to the ENs, “it is clear from these examples that, unlike Note 7(a) "textile products," which may be imported in rolls or bolts, Note 7(b) "textile articles" upon importation possess the fixed identity and specific dimensions required for use with a particular machine or for some other specific technical application.” Id., at 1309. In this case, as described above, the filter pockets possess a fixed identity and specific dimensions required for subsequent molding into plastic housing frames to become finished air filters. Therefore we find the filter pockets to be “articles” for purposes of Chapter 59, note 7(b), HTSUS. Protestant cites to the rulings in Appendix “B” for the proposition that in order to be classified in heading 5911, HTSUS, filters should be in their finished state. The ENs to 59.11 state that "the textile articles of this heading may incorporate accessories in other material provided the articles remain essentially articles of textile." Nothing in the EN, heading or notes requires that the articles be fully completed and ready for use to be classified in heading 5911, HTSUS. As outlined above, the instant filter pockets are textile articles for technical uses and fall within the scope of 7(b), and thus are classified under heading 5911, HTSUS. Certain subheadings of heading 5911, HTSUS, specifically cover some of the individual Note 7(a) categories. Subheadings 5911.10 through 5911.40 cover specific technical use fabric. Subheading 5911.90 is a residual provision covering other textile products and articles for technical uses, specified in Note 7 to Chapter 59. Consequently, as the instant merchandise is described by the text of heading 5911, HTSUS, we find that the filter pockets are properly classified in heading 5911, HTSUS, by application of GRI 1. Protestant argues that the decision to classify the filter pockets in heading 5911, HTSUS, is inconsistent with Headquarters Ruling Letter (“HQ”) 556015, dated May 20, 1991, which considered whether cutting a fabric originating from Hong Kong into pieces for duvet covers in the U.S. was substantial transformation for purposes of duty exemption under heading 9802, HTSUS. H556015 is not relevant here because the ruling pertains to the origin of merchandise, not what constitutes an article for the purposes of classification in Section XI, HTSUS. Articles of Section XI are formed by, for example, being cut to shape other than a square or rectangle. Further working after importation does not affect the classification of this item. Its use as a textile filter was fixed with certainty at the time of importation before attaching the filter pockets to a frame. As noted above “The pockets are produced in three standard sizes to fit these standard filters.” Protestant cites to the decision in Airflow Technology v. United States, 804 F. Supp 2d 1292 (Ct. Int’l Trade 2011) in support of its argument that the instant filter pockets are classifiable in heading 5603, HTSUS. Airflow is not applicable to this case in support of classification of the filter pockets in heading 5603, HTSUS. In Airflow, the court determined the Sperifilt was not a “textile fabric” which could be considered within the scope of note 7(a) to Chapter 59, as it was nonwoven, and also it was imported in rolls that had “no precuts, cutting marks, or any other indication whatsoever as to the length and width to which the imported [media] was to be cut”, and as such was not a textile “article” classifiable in heading 5911, HTSUS, under Note 7(b) to Chapter 59. Id., at 1310. The court determined that the subject merchandise involved was prima facie classifiable as a heading 5603 “nonwoven.” Here, as outlined above, the filter pockets meet the criteria of Note 7(b) to Chapter 59, HTSUS, and are thus described by the text of heading 5911, HTSUS. Accordingly, we find that the filter pockets are properly classified in heading 5911, HTSUS. Protestant cites to numerous CBP rulings in its Appendix “A” for support that the subject filter pockets are not “made up” for the purposes of heading 6307, HTSUS. First, heading 6307, HTSUS, provides for “Other made up articles, including dress patterns”, and is not a heading at issue here. In addition, the filter pockets are “made up” under the terms of Section XI, Note 7 (a) and (e). The filter pockets are cut into trapezoids, thus other than into squares or rectangles, and are welded on three sides, thus “assembled by sewing, gumming or otherwise”. In view of the foregoing, we find that the filter pockets are classifiable as textile articles for technical uses in heading 5911, HTSUS. Consequently, we find that the filter pockets are properly classified in heading 5911, HTSUS. HOLDING: By application of GRIs 1 (note 7(b) to Chapter 59) and 6, the filter pocket is classified in heading 5911, HTSUS, and specifically, in subheading 5911.90.00, HTSUS, which provides for “Textile products and articles, for technical uses, specified in note 7 to this chapter: Other.” The column one, general rate of duty is 3.8 percent ad valorem. You are instructed to DENY the protest. 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 re-liquidation 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 Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division