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HQ 955244


April 4, 1994

CLA-2 CO:R:C:T 955244 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 5911.40.0000

Frank J. Schuchat, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
1615 L Street, N.W.
Washington, D.C. 20036-5694

RE: Classification of nonwoven polyester filter mat used as an air filter medium in paint spray booths; HRL 950493, NYRL 865310 affirmed; straining cloth; technical use fabric.

Dear Mr. Schuchat:

This is in response to your letters dated October 19, 1993, and March 16, 1994, requesting reconsideration of Headquarters Ruling Letter (HRL) 950493, dated September 29, 1992, and New York Ruling Letter (NYRL) 865310, dated August 1, 1991, which concerned the tariff classification of a filter mat for use in down draft paint spray booths. We met with you and Pieter Borkent, President of Filtrair Corporation, on February 1, 1994, to discuss this matter.

FACTS:

The subject merchandise, identified as type CC-600G, is a nonwoven mat composed of polyester fibers to which a nylon scrim fabric has been laminated to one side. The filter mat is approximately 1 inch thick and is imported in rolls measuring 80 inches wide by 66 in feet length. It is cut to size in the United States. The filter mat is installed into the ceilings of down draft paint spray booths and is used by automobile manufacturers as a medium to filter out incoming air, dust and dirt particles.

An accompanying technical data sheet describes the merchandise as follows:

Progressively structured, high density and high performance nonwoven air filter medium made from synthetic fibers, resin- and thermally bonded, with special adhesive coating in full depth on each individual fiber to ensure:

1. absolutely no migrating of paint-damaging particles larger than 15 microns, due to vibration;

2. 100% coating of all fibers;

3. full self-extinguishing flame properties.

Clean air side particularly dense and smoothed, reinforced with woven open mesh scrim, and imprinted with EU-5 classification and DIN identification permit number.

Other marketing information states that the mat is designed for:

[S]uper fine air filtration of the air supply side of paint spray plants and down draft paint booths. The most important criterion in this technology is to prevent paint damaging particles 15 microns and larger from migrating downstream after collection, due to vibration in the system.

In HRL 950493 and NYRL 865310, the filter mat was classified in subheading 5911.40.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), 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.

ISSUE:

What is the proper tariff classification for the type CC- 600G filter mat?

LAW AND ANALYSIS:

You contend that the instant filter mat was erroneously classified as straining cloth of subheading 5911.40, HTSUSA, on several grounds. First, you note that the mat is a nonwoven product and direct our attention to the Explanatory Note to heading 5911, at page 823, which states:

Straining cloth (e.g., woven filter fabrics an (sic) 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.

You contend that the exemplars of this Note are limited to woven fabrics. From this premise you reason that nonwoven materials are excluded from the straining cloth provision.

However, the Explanatory Note to heading 5911, HTSUSA, sets forth at least one example of a nonwoven fabric classified as straining cloth: needled filter fabrics classified in heading 5602, HTSUSA. In addition, heading 5603, HTSUSA, provides for nonwovens. The Explanatory Note to heading 5603, at page 776, states the heading excludes nonwovens for technical uses. This exclusion indicates that nonwovens for technical uses are classified generally within heading 5911. Consequently, we conclude that the straining cloth provision of subheading 5911.40, HTSUSA, is not limited to woven fabrics.

You next observe that heading 5911, HTSUSA, is limited to textile products and articles for "technical uses." The Explanatory Note to heading 5911, at page 822, states in pertinent part that:

The 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. (Emphasis added).

You argue that the CC-600G filter mat is not used in any "machinery, apparatus, equipment or tools" and draw an analogy between the instant mat and a panel installed in an office ceiling. As a result, you take the position that the mat is not designed for a "technical use" and is precluded from classification within heading 5911, HTSUSA.

In this case, the filter mat is placed in the ceiling of a spray paint booth approximately 20 feet high and wide. Air is blown through the ceiling, sucked through the floor and passed through water. The filter removes dust and other particles from the air. This process creates the dust free environment necessary to paint automobiles. We regard the spray paint booth as an "apparatus," as it performs a function or executes a task (i.e. the cleaning of air) independent from its use as work space. As the filter mat is designed for use in apparatus, it may be classified as a textile product for technical uses. On the other hand, an office in and of itself performs no function or task. For this reason, a ceiling panel in an office is not designed for a technical use.

You further suggest that the filter mat is more properly classified in heading 5603, HTSUSA, which provides generally for nonwovens. You claim that European administrations classify this material in heading 5603. Hence, in the interests of uniformity the filter material should be classified in the same manner in this country.

We agree that the subject merchandise is prima facie classifiable as a nonwoven of heading 5603. However, as alluded to above, the Explanatory Note to heading 5603 states that nonwovens for technical uses are classified in heading 5911. As we have determined that the filter mat is a textile for technical uses, it follows that it is excluded from heading 5603. In addition, pursuant to General Rule of Interpretation 3(a), heading 5911 provides a more specific description of the merchandise than heading 5603.

We are not bound by the classification determinations of other contracting parties to the Harmonized Commodity Description and Coding System. In this regard, we note that in buttressing one of your alternative claims you have submitted a ruling letter from the Canadian administration classifying the instant filter material within heading 5911. In light of this conflicting precedent we will not re-classify this product in the absence of substantive and compelling legal arguments refuting our rationale.

The Explanatory Note to heading 5911, at page 823, indicates that straining cloths used in industrial dust collecting systems are classified in subheading 5911.40, HTSUSA. In HRL 950493, we stated that the instant filter mat used in paint spray booths was "a technical application in an industrial dust collecting system." You dispute this finding and state that an industrial dust collecting system is "a mechanism that collects dust or other particles that have been dispersed in a confined space...so that the particles or dust do not escape into the atmosphere along with the air expelled from the confined space." As the filter mat is not used in a system to collect and expel air, you conclude that it is not straining cloth of subheading 5911.40, HTSUSA.

More generally, you cite HRL 950733, dated December 28, 1993, as support for your position that the filter mat is not straining cloth of a kind used in oil presses or the like. In that decision, we stated that:

The references referred to above indicate that oil presses are designed to maximize the surface area of the filter cloth through which the slurry is forced. The filter cloth is relatively heavy and thick in relation to bolting cloth. For this reason, it is generally more durable than bolting cloth. There appears to be no requirement that the filter cloth possess exact and uniform openings. Cloths which are relatively thick and heavy and which possess variable pore openings will capture a high volume of solids of variable size.

The EN reinforce this interpretation as they indicate that the provision encompasses heavy fabrics of wool which possess a characteristic rigidity. It also lists a close weave as a property characteristic of straining cloth, which may be contrasted to the fine woven uniform mesh weave normally found in bolting cloths. Finally, the EN list a variety of fabrics embraced by the straining cloth classification, including woven filter fabrics, needled filter fabrics, fabrics of wool or of other animal or human hair. From these observations we conclude that the straining cloth provision provides for most, if not all, of the filter fabrics for technical purposes not described by the bolting cloth provision.

In HRL 950733, we found that the straining cloth and bolting cloth provisions within heading 5911, HTSUSA, describe most, if not all, filter fabrics which are for technical uses. Thus, the filter mat need not be used in an industrial dust collecting system to be classified as straining cloth. Rather, it need only generally exhibit the characteristics of straining cloth, as that term is used in the HTSUSA, to be classified in subheading 5911.40, HTSUSA. Straining cloth includes material that is relatively thick and heavy in relation to bolting cloth, possesses a close weave and variable pore openings in order to capture a large volume of solids or particles.

As previously stated, the straining cloth provision encompasses nonwoven fabrics. Thus, the fact that the filter mat does not possess a close weave does not preclude it from classification within subheading 5911.40. We note that marketing materials describe the mat as a high density filter. Hence, it will capture relatively small particles in a manner similar to cloth possessing a close weave. Although the mat may not be thick and heavy in absolute terms, it is thicker (approximately 1 inch) and is appreciably heavier than bolting cloth. Furthermore, the filter mat does not possess the exact and uniform openings characteristic of bolting cloth. Marketing information indicates that it is designed to hold and retain a high volume of particles to prevent "migrating of paint-damaging particles larger than 15 microns, due to vibration." As a result, our administrative precedent supports our determination that the filter mat is properly classified as straining cloth of subheading 5911.40, HTSUSA.

HOLDING:

The subject merchandise is classifiable under subheading 5911.40.0000, HTSUSA, 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 applicable rate of duty is 17 percent ad valorem.

Sincerely,

John Durant, Director

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