Airflow Remand: Worth Reading

Airflow Technologies is one of my favorite cases of the past few years. In it, the Federal Circuit reversed the Court of International Trade and held that the tariff description "straining cloth" in HTSUS heading 5911 only applies to cloth used for straining solid particles from liquids. Whatever clearing the air or other gases of particulates may be called, it is not straining. The Federal Circuit remanded to the Court of International Trade for additional consideration. The CIT has now issued its remand decision, and it is interesting.

Filter media is complicated to classify for two reasons. First, the media itself can be made of various materials from paper to fiber glass to textiles. Second, the imported product is often not just the media but the media housed or supported in some way. Think about a basic furnace filter as an example. Although everyone calls those things "furnace filters," Customs and Border Protection tends to think of them as the just the media. To CBP, a "filter" is advanced beyond simply mounted media. You tell me whether that seems consistent with the common and commercial meaning the next time you buy a furnace filter or replacement filter for a humidifier.

This case deals with just the media, imported in bulk rolls. Customs and Border Protection has lots of rulings putting various textile filter media in Heading 5911 on the theory that it is a textile product for technical uses. Importers have suggested 5603, other nonwoven products. Of course, 5603 is duty free. Over time, there seems to have been a drift toward a conclusion that filter media of textiles belong in 5911, which is dutiable. In some ways, I like that. I like a simple rule that importers can implement. But, this is more complicated than that. Heading 5911 only covers textile products and articles for technical uses if they are "specified in Note 7" to Chapter 59. That adds a limitation that importers, Customs, and the Courts cannot ignore.

Because 5603 excludes products of 5911, the Court first looked at whether the filter media was classifiable in 5911. This resulted in a detailed analysis that gave meaning to all the relevant limitations in Note 7.

The note is broken down into two sections, the first part, 7(a), states that 5911 includes:

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;

The Government contended that the filter media fell within Note 7(a)(i) as being similar to felt, which is also a non-woven product.The Court, however, found that ts is not sufficient to be similar to felt. Rather, the note requires that the media be similar to felt that is coated, covered or laminated with rubber and of a kind used for card clothing or a similar fabric of a kind used for technical purposes. Although the media is covered with a tackifying adhesive and polyester backing, it is not coated, covered, or laminated with rubber, leather, or another material, is not used for card clothing, and according to the Court, is not similar to coated fabrics used for other technical purposes. [Note: read the opinion if you want to know what the heck card clothing is. The answer is interesting.] There were no significant arguments that the media fell within any other provision of Note 7(a).

Note 7(b) covers:

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).

This part of the opinion is another very interesting careful parsing of the tariff language. Many people read these texts and assume that "goods," "products," and "materials," are all just equivalent ways of saying "stuff." That is not the case. Rather, the law assumes that when different words are used in the same statute, there is a reason for it. In this case, the question was whether the filter media qualifies as an "article" for purposes of 7(b).

Note that 7(a) covers "products" and 7(b) covers "articles." Consequently, the CIT found they have different meanings. According to the Court's analysis, a textile product is a material (e.g., fabric). A textile article is an object with a fixed identity and dimension (e.g., textile gaskets). This is consistent with the examples in each rule. 7(a) focuses on fabrics and materials. 7(b) mentioned gaskets, washers, and polishing disks. Also, the Explanatory Notes refer to textile articles being produced from textile products. This product is bulk rolls of textile filter media, thus, according to the Court, it is not an article for purpose of 7(b).

Consequently, the goods are not classifiable in 5911. That leaves 5603. Even though 5603 excludes goods of 5911, because the filter media is not 5911, it stays in 5603.

Now, if only someone would address the issue of the furnace filter. That would make me a happier man.

Up Next: Hitachi! I shall do it soon. But I need not. Read it and you will understand.