Airflow Tech., Inc. v. United States
| Decision Date | 31 October 2011 |
| Docket Number | Slip Op. 11–136.Court No. 02–00099. |
| Citation | 804 F.Supp.2d 1292,33 ITRD 2233 |
| Parties | AIRFLOW TECHNOLOGY, INC., Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
OPINION TEXT STARTS HERE
Jessica R. Rifkin, Rodriguez O'Donnell Gonzalez & Williams, P.C., of Chicago, IL, argued for plaintiff. With her on the brief was Thomas J. O'Donnell.
Mikki Cottet, Senior Trial Counsel, International Trade Field Office, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, NY, argued for defendant. With her on the brief were Tony West, Assistant Attorney General, and Barbara S. Williams, Attorney In Charge. Of counsel on the brief was Michael W. Heydrich, Office of the Assistant Chief Counsel, International Trade Litigation, Bureau of Customs and Border Protection, U.S. Department of Homeland Security, of New York, NY.
This test case, on remand from the Court of Appeals for the Federal Circuit, concerns the classification of 21 entries of Sperifilt filter media (“Sperifilt”) imported from Italy by plaintiff Airflow Technology, Inc. in 1998 and 1999. See generally Airflow Technology, Inc. v. United States, 524 F.3d 1287 (Fed.Cir.2008) (“ Airflow II ”). Airflow I granted the Government's cross-motion for summary judgment, sustaining the determination of the U.S. Customs Service classifying Sperifilt under subheading 5911.40.00 of the Harmonized Tariff Schedule of the United States (“HTSUS”). See generally Airflow Technology, Inc. v. United States, 31 CIT 524, 483 F.Supp.2d 1337 (2007) (“ Airflow I ”), rev'd and , 524 F.3d 1287 (Fed.Cir.2008) ( “ Airflow II ”).1 Airflow appealed, and the Court of Appeals reversed and remanded. See Airflow II, 524 F.3d at 1293. 2
The parties' cross-motions for summary judgment, filed on remand, are now pending. In its motion, Airflow reiterates its claim that Sperifilt is classifiable under HTSUS heading 5603—specifically, subheading 5603.94.90, which covers “Nonwovens, whether or not impregnated, coated, covered or laminated: Other: Weighing more than 150 g/m 2: Other: Other,” and is duty-free. See Subheading 5603.94.90, HTSUS; Memorandum in Support of Plaintiff's Motion for Summary Judgment at 1, 5, 30 (“Pl.'s Brief”); Plaintiff's Opposition to Defendant's Cross–Motion for Summary Judgment and Reply to Defendant's Opposition to Plaintiff's Motion for Summary Judgment at 21–22 (“Pl.'s Reply Brief”).3
For its part, the Government continues to argue that classification under HTSUS heading 5911 is proper. In light of Airflow II, the Government contends on remand that the appropriate subheading is subheading 5911.10.20, which covers “Textile products and articles, for technical uses, specified in note 7 to this chapter: 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): Other,” which carried duty rates of 6% and 5.6% ad valorem in 1998 and 1999, respectively. See Subheading 5911.10.20, HTSUS; Memorandum in Opposition to Plaintiff's Motion for Summary Judgment and In Support of Defendant's Cross–Motion for Summary Judgment at 1, 5–6, 11–16, 22–23, 25 (“Def.'s Brief”); Defendant's Reply to Plaintiff's Opposition to Defendant's Cross–Motion for Summary Judgment at 1, 5–9 (“Def.'s Reply Brief”). In the alternative, the Government argues for classification under subheading 5911.90.00, which covers “Textile products and articles, for technical uses, specified in note 7 to this chapter: Other,” which carried duty rates of 6% and 5.6% in 1998 and 1999, respectively. See Subheading 5911.90.00, HTSUS; Def.'s Brief at 1–2, 5–6, 11–12, 16–23, 25; Def.'s Reply Brief at 1, 5, 10–15.
Jurisdiction lies under 28 U.S.C. § 1581(a) (1994).4 For the reasons that follow, the subject entries of Sperifilt filter media must be classified under HTSUS subheading 5603.94.90. Airflow's motion for summary judgment therefore must be granted, and the Government's cross-motion denied.
As detailed in Airflow I, Sperifilt filter media “is made up of three basic components: a high-loft, nonwoven medium made of polyester thermobonded fibers; a polyester yarn backing net; and a tackifying substance ( i.e., an adhesive),” and “is designed for use, manufactured for use, and actually used for air filtration in paint spray booths.” See Airflow I, 31 CIT at 525–26, 483 F.Supp.2d at 1340; see also Airflow II, 524 F.3d at 1289. Sperifilt is manufactured by Speritex S.p.A. of Brusnengo, Italy, using the following process:
First, polyester staple fibers of different sizes are carded, to form uniform sheets of fibers. Several sheets are then layered, to achieve a specific weight and thickness sufficient to create a filter medium that progressively increases in density in one direction (the direction of the intended airflow), so that air will pass through the filter from the less dense portion through progressively denser portions, thus filtering out progressively smaller particles. After the layers are thermally bonded together, the filter medium is impregnated with a tackifying substance ( i.e., an adhesive). The tackified filter medium is then bonded to a backing (a net of polyester yarn) on the side of the finished product where the flow of filtered air will exit. The net backing ensures dimensional stability under high temperature conditions, and helps prevent fibers and particles from escaping. The result is a high-loft, nonwoven filter medium that captures particles of disparate sizes at different depths of the medium. According to Airflow, the finished product—the imported filter material—is produced in rolls that are approximately 66 feet long and between 22 and 81 inches wide.
Airflow I, 31 CIT at 526, 483 F.Supp.2d at 1340 (citations omitted); see also Airflow II, 524 F.3d at 1289.
In 1998 and 1999, 21 entries of Sperifilt were imported through the Port of Chicago and were liquidated by Customs under HTSUS subheading 5911.40.00, which covers “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 ...,” with customs duties imposed at the rates of 11% and 10.5% for 1998 and 1999, respectively. See Airflow II, 524 F.3d at 1289; Airflow I, 31 CIT at 524, 483 F.Supp.2d at 1339. Airflow filed a protest, which was denied, and this action followed. See Airflow II, 524 F.3d at 1289; see generally Airflow I, 31 CIT 524, 483 F.Supp.2d 1337.
In Airflow I, Airflow argued that Sperifilt should have been classified under HTSUS subheading 5603.94.90, a duty-free provision covering “Nonwovens, whether or not impregnated, coated, covered or laminated: Other: Weighing more than 150 g/m 2: Other: Other.” See Airflow I, 31 CIT at 524, 483 F.Supp.2d at 1339; Subheading 5603.94.90, HTSUS; see also Airflow II, 524 F.3d at 1289–90. Airflow argued in the alternative that classification was appropriate under subheading 5911.90.00, a residual provision covering “Textile products and articles, for technical uses, specified in note 7 to this chapter: Other,” dutiable at the rate of 6% and 5.6% in 1998 and 1999, respectively. See Airflow I, 31 CIT at 524, 483 F.Supp.2d at 1339; Subheading 5911.90.00, HTSUS.
Ruling on cross-motions for summary judgment, Airflow I determined that Sperifilt falls within the scope of the term “straining cloth” as the term is used in Note 7(a)(iii) to Chapter 59 of the HTSUS and in subheading 5911.40.00. See generally Airflow I, 31 CIT at 529–38, 483 F.Supp.2d at 1343–50; see also Airflow II, 524 F.3d at 1290. Moreover, citing an Explanatory Note to heading 5603 which expressly excludes from that heading “Nonwovens for technical uses, of heading 59.11,” Airflow I concluded that a determination that merchandise is classifiable under a subheading of heading 5911 precludes classification of the merchandise under heading 5603. See Airflow I, 31 CIT at 538, 483 F.Supp.2d at 1350. Airflow I therefore sustained Customs' classification of Sperifilt under subheading 5911.40.00 of the HTSUS, and entered summary judgment in favor of the Government. See Airflow I, 31 CIT at 541, 483 F.Supp.2d at 1353; see also Airflow II, 524 F.3d at 1290.
Airflow appealed, and the Court of Appeals reversed and remanded. See generally Airflow II, 524 F.3d 1287. Considering only “the proper interpretation of ... the language of subheading 5911.40.00,” the Court of Appeals disagreed with Airflow I's conclusion that the HTSUS term “straining cloth” covers air filtration media such as Sperifilt. See id., 524 F.3d at 1290, 1292. Although the Court of Appeals acknowledged that “the terms ‘straining’ and ‘filtering’ carry similar meanings,” the court concluded that the meanings of the terms are not “identical.” See id., 524 F.3d at 1292. According to the Court of Appeals, the two terms “differ in one critical aspect—‘straining’ suggests removing solids from liquids while ‘filtering’ suggests removing solids from liquids or gases.” See id.5 The Court of Appeals ultimately concluded that the tariff term “straining cloths” is “limited to products that separate solids from liquids, and does not encompass products, such as Sperifilt, that can only separate solids from gases,” and held that Sperifilt therefore could not be classified under subheading 5911.40.00 of the HTSUS. See id., 524 F.3d at 1293. As such, the Court of Appeals reversed Airflow I, and remanded the matter for a determination as to “whether Sperifilt is more properly classified under subheading 5911.90.00, directed to ‘other,’ or under subheading 5603.94.90” of the HTSUS. See id.
Customs classification decisions are reviewed de novo, through a two-step analysis. See 28 U.S.C. § 2640; Faus Group, Inc. v. United States, ...
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