                                            Slip Op. 11-____
                                                        136

                  UNITED STATES COURT OF INTERNATIONAL TRADE


AIRFLOW TECHNOLOGY, INC.,                       :

                               Plaintiff,       :

                   v.                           :      Court No. 02-00099

UNITED STATES,                                  :

                               Defendant.       :


[Plaintiff’s motion for summary judgment is granted; defendant’s cross-motion is denied.]

                                                                          Dated: October 31, 2011

        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.

                                              OPINION

RIDGWAY, Judge:

       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
Court No. 02-00099                                                                            Page 2



(“HTSUS”). See generally Airflow Technology, Inc. v. United States, 31 CIT 524, 483 F. Supp. 2d

1337 (2007) (“Airflow I”), rev’d and remanded, 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/m2: 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,



         1
         The U.S. Customs Service – formerly part of the U.S. Department of Treasury – is now part
of the U.S. Department of Homeland Security, and is commonly known as U.S. Customs and Border
Protection. See Bull v. United States, 479 F.3d 1365, 1368 n.1 (Fed. Cir. 2007). The agency is
referred to as “Customs” herein.
         2
          Familiarity with Airflow I and Airflow II is presumed.
         3
        All references herein are to the 1998 version of the HTSUS, which is identical to the 1999
version in all relevant respects.
Court No. 02-00099                                                                             Page 3



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.


                                            I. Background

          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;


          4
        All statutory citations herein (other than citations to the HTSUS) are to the 1994 edition of
the United States Code.
Court No. 02-00099                                                                               Page 4



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.
Court No. 02-00099                                                                           Page 5



       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/m2: 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
Court No. 02-00099                                                                                Page 6



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” covered 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”


        5
          The Court of Appeals recognized that the Explanatory Note to heading 5911 on which
Airflow I heavily relied “indicates that subheading 5911.40.00 applies broadly to any type of
filtering cloth, including those used for filtering air.” See Airflow II, 524 F.3d at 1292-93
(discussing Explanatory Notes, Heading 5911, at (A)(3)); see generally Airflow I, 31 CIT at 534,
483 F. Supp. 2d at 1347 (stating, inter alia, that “the Explanatory Notes specifically state that the
filtration media embraced by heading 5911 includes media ‘for gas cleaning or similar technical
applications in industrial dust collecting systems,” and thus “make it clear that Sperifilt filter media
is covered by subheading 5911.40.00”) (emphasis added in Airflow I). However, because the Court
of Appeals considered the language of the tariff provision itself (i.e., “straining cloth”) to be
“unambiguous and the Explanatory Notes contradictory,” the court gave no weight to the
Explanatory Note. See Airflow II, 524 F.3d at 1293.

         In reaching its decision in Airflow II, the Court of Appeals apparently was not presented
with, and therefore did not have the benefit of, dictionary definitions indicating that, although
“strain” may more frequently refer to the separation of a solid from a liquid, the term in fact is not
necessarily so narrowly defined and, indeed, can be synonymous with the term “filter.” See, e.g.,
American Heritage Dictionary of the English Language 1710 (4th ed. 2000) (defining “strain” as
“[t]o draw off or remove by filtration,” and using the separation of solid from liquid as merely
illustration); 16 Oxford English Dictionary 828 (2d ed. 1989) (defining “strain” as, inter alia, “[t]o
press through a filtering medium, to filter”); id. at 830 (defining “straining” as, inter alia, “filtering,
sifting, expressing”); Webster’s New World Dictionary, Second College Edition 1406 (1979)
(defining “strain” as, inter alia, “to pass through a screen, sieve, filter, etc.; [to] filter”; and “to
remove or free by filtration, etc.”); see also Recording of Oral Argument at 1:07:50-1:08:50 (counsel
for Government voicing its disagreement with Airflow II as to definition of “strain,” and arguing
that “there [are] other dictionaries, [which] are American dictionaries, that set forth the common
Court No. 02-00099                                                                                Page 7



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.


                                       II. Standard of Review

        Customs classification decisions are reviewed de novo, through a two-step analysis. See 28

U.S.C. § 2640; Faus Group, Inc. v. United States, 581 F.3d 1369, 1371-72 (Fed. Cir. 2009). The

first step of the analysis addresses the proper meaning of the relevant tariff provisions, which is a

question of law. The second step involves determining whether the merchandise at issue falls within

a particular tariff provision as construed. See id. (citing Orlando Food Corp. v. United States, 140




meaning of the term [“strain”], and expressly provide that it includes . . . ‘strains gases, liquids, and
dry goods’”); id. at 1:38:40-1:41:10 (counsel for Government arguing that term “strain” is defined
broadly, as “to pass through a screen, sieve, filter, etc.; filter,” but acknowledging that Government
failed to present this definition to Court of Appeals).

        Airflow II similarly did not address the fact that the text of the Explanatory Note to heading
5911 on which Airflow I was predicated, which expressly states that heading 5911 encompasses
filter media used in “technical applications in industrial dust collecting systems” (i.e., air filters such
as Sperifilt), is the same text as that in the 1986 version of the Explanatory Notes that was in place
and thus available to Congress when it adopted the HTSUS in 1989. See Airflow I, 31 CIT at 534
n.12, 483 F. Supp. 2d at 1347 n.12 (discussing Explanatory Notes, Heading 5911, at (A)(3)). Thus,
as Airflow I explained, “to the extent that legislative intent can be inferred from the Explanatory
Notes then in place, it would seem that Congress intended heading 5911 to be interpreted in a
manner consistent with those Explanatory Notes, which specifically refer to ‘straining cloth’ as
including filter fabrics . . . that are used for purposes other than filtering liquids.” See id.
Court No. 02-00099                                                                           Page 8



F.3d 1437, 1439 (Fed. Cir. 1998)).

       Under USCIT Rule 56, summary judgment is appropriate where “there is no genuine issue

as to any material fact” and the moving party is entitled to judgment as a matter of law. See USCIT

R. 56(c). Summary judgment is thus appropriate in a customs classification case if there is no

genuine dispute of material fact (because the nature of the merchandise at issue is not in question),

such that the decision on the classification of the merchandise turns solely on the proper meaning

and scope of the relevant tariff provisions. See Faus Group, 581 F.3d at 1371-72.

       In the present case, the parties differ as to the meaning and scope of the various tariff

provisions in question. However, there is no genuine issue as to any material fact. This matter is

therefore ripe for summary judgment.


                                           III. Analysis

       The tariff classification of all merchandise imported into the United States is governed by

the General Rules of Interpretation (“GRIs”) and the Additional U.S. Rules of Interpretation

(“ARIs”), which provide a framework for classification under the HTSUS, and are to be applied in

numerical order. See BASF Corp. v. United States, 482 F.3d 1324, 1325-26 (Fed. Cir. 2007); 19

U.S.C. § 1202.6 Most merchandise is classified pursuant to GRI 1, which provides for classification


       6
         The HTSUS consists of the General Notes, the General Rules of Interpretation (“GRIs”),
the Additional U.S. Rules of Interpretation (“ARIs”), and Sections I to XXII of the HTSUS
(including Chapters 1 to 99, together with all Section Notes and Chapter Notes, article provisions,
and tariff and other treatment accorded thereto), as well as the Chemical Appendix. See BASF
Corp., 482 F.3d at 1325-26; Libas, Ltd. v. United States, 193 F.3d 1361, 1364 (Fed. Cir. 1999)
(noting that the HTSUS “is indeed a statute but is not published physically in the United States
Code”) (citing 19 U.S.C. § 1202). The terms of the HTSUS are “considered ‘statutory provisions
of law for all purposes.’” See Alcan Aluminum Corp. v. United States, 165 F.3d 898, 904 n.5 (Fed.
Court No. 02-00099                                                                            Page 9



“according to the terms of the headings and any relative section or chapter notes.” See GRI 1,

HTSUS. Only if the headings and Chapter and Section Notes do not determine classification does

one look to the subordinate GRIs. See Mita Copystar America v. United States, 160 F.3d 710, 712

(Fed. Cir. 1998). When an imported item is classifiable based on application of GRI 1, recourse to

the subsequent GRIs and the ARIs is unnecessary and inappropriate. See BASF Corp., 482 F.3d at

1325-26. Moreover, the appropriate subheading for classification is considered only after the proper

heading is determined. See Faus Group, 581 F.3d at 1372.7

       The first step in a classification analysis is thus to construe the terms of the headings of the

HTSUS, together with any pertinent Section and Chapter Notes (which are statutory law), to

determine whether they require a specific classification. See Avenues in Leather, Inc. v. United

States, 423 F.3d 1326, 1333 (Fed. Cir. 2005) (explaining that Section Notes and Chapter Notes “are

not optional interpretive rules, but are statutory law, codified at 19 U.S.C. § 1202”) (internal

quotation marks omitted); Degussa Corp. v. United States, 508 F.3d 1044, 1047 (Fed. Cir. 2007)

(stating that “section and chapter notes are integral parts of the HTSUS, and have the same legal

force as the text of the headings”).

       Tariff terms are construed “according to their common commercial meanings”; and a court

may rely both on its own understanding of a term and on lexicographic and scientific authorities.



Cir. 1999) (internal citation omitted).
       7
         GRI 6 governs classification at the subheading level, and requires a renewed sequential
application of GRIs 1 to 5 to the particular subheadings under consideration. See GRI 6, HTSUS
(“For legal purposes, the classification of goods in the subheadings of a heading shall be determined
according to the terms of those subheadings and any related subheading notes and, mutatis mutandis,
to the [GRIs], on the understanding that only subheadings at the same level are comparable.”).
Court No. 02-00099                                                                         Page 10



See Millenium Lumber Distribution Ltd. v. United States, 558 F.3d 1326, 1328-29 (Fed. Cir. 2009);

Len-Ron Mfg. Co. v. United States, 334 F.3d 1304, 1309 (Fed. Cir. 2003). Also instructive are the

Explanatory Notes to the Harmonized Commodity Description and Coding System (“Explanatory

Notes”), “which – although not controlling – provide interpretive guidance.” See E.T. Horn Co. v.

United States, 367 F.3d 1326, 1329 (Fed. Cir. 2004) (citation omitted); see generally World Customs

Organization, Harmonized Commodity Description and Coding System (2d ed. 1996).8

         The Explanatory Notes are the official interpretation of the Harmonized Commodity

Description and Coding System (on which the HTSUS is based), as set forth by the World Customs

Organization (the same body which drafts the international nomenclature). See Rocknel Fastener,

Inc. v. United States, 267 F.3d 1354, 1360 (Fed. Cir. 2001) (explaining that Explanatory Notes are

“prepared by the World Customs organization to accompany the international harmonized

schedule”). Accordingly, although the Explanatory Notes “do not constitute controlling legislative

history,” they serve a critical function as an interpretative supplement to the HTSUS, and “are

intended to clarify the scope of HTSUS [provisions,] and to offer guidance in interpreting [those

provisions].” See Mita Copystar, 21 F.3d at 1082 (citation omitted). The Explanatory Notes are



         8
        As Congress has recognized, the Explanatory Notes “provide a commentary on the scope
of each heading of the Harmonized System and are thus useful in ascertaining the classification of
merchandise under the system.” See H.R. Conf. Rep. No. 576, 100th Cong., 2d Sess. 549 (1988),
reprinted in 1988 U.S.C.C.A.N. 1547, 1582; see also Guidance for Interpretation of Harmonized
System, 54 Fed. Reg. 35,127, 35,128 (Aug. 23, 1989) (noting that the Explanatory Notes provide
a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the
Harmonized System at the international level).

         All citations to the Explanatory Notes herein are to the 1996 version of the Explanatory
Notes.
Court No. 02-00099                                                                             Page 11



thus highly authoritative – “persuasive” and “‘generally indicative of the proper interpretation of a

tariff provision.’” See Agfa Corp. v. United States, 520 F.3d 1326, 1329-30 (Fed. Cir. 2008)

(quoting Degussa Corp., 508 F.3d at 1047 (citation omitted)).

        The issue presented by the pending motions is whether, in light of Airflow II, the subject

entries of Sperifilt filter media are classifiable under heading 5911 as “Textile products and articles,

for technical uses, specified in note 7 to this chapter” (i.e., Chapter 59), as the Government contends,

or under heading 5603 as “Nonwovens, whether or not impregnated, coated, covered or laminated,”

as Airflow maintains. See Heading 5911, HTSUS; Heading 5603, HTSUS. The Explanatory Notes

to heading 5603 expressly exclude “[n]onwovens for technical uses, of heading 59.11” from

classification under heading 5603. See Explanatory Notes, Heading 5603, at (ij).9 Therefore, if the

entries of Sperifilt at issue here are classifiable under heading 5911, they cannot be classified under

heading 5603. Thus, the threshold question to be answered is whether the subject entries are

properly classifiable under heading 5911. In light of Airflow II, and for the reasons summarized

below, the response to this question is “no.” Accordingly, the subject entries of Sperifilt must be

classified under heading 5603, based on a straightforward application of GRI 1.10


        9
        See also FilmTec Corp. v. United States, 27 CIT 1730, 1736-37, 293 F. Supp. 2d 1364,
1369-70 (2003) (discussing Explanatory Notes’ exclusion of “[n]onwovens for technical uses, of
heading 59.11” from scope of heading 5603).

       More generally, the Explanatory Notes also exclude from the scope of heading 5603
merchandise that is “covered more specifically by other headings.” See Explanatory Notes, Heading
5603; see also Airflow II, 524 F.3d at 1290 (referencing exclusion); Airflow I, 31 CIT at 527-28,
483 F. Supp. 2d at 1341-42 (discussing Explanatory Notes to heading 5603).
        10
         The parties devote much ink to the scope of this remand proceeding. See Pl.’s Brief at 7;
Def.’s Brief at 8-11; Pl.’s Reply Brief at 2-3; Def.’s Reply Brief at 2-4. Specifically, the parties
Court No. 02-00099                                                                                     Page 12




                                             A. Heading 5911

        Heading 5911 covers “[t]extile products and articles, for technical uses, specified in note 7

to this chapter.” See Heading 5911, HTSUS. Thus, merchandise may be classified under heading

5911 only if it is: (1) a textile product or article; (2) for technical uses; (3) specified in Note 7 to

Chapter 59. See Heading 5911, HTSUS. Criteria (1) and (2) above are not in dispute. As Airflow

I explained, “[b]ecause Sperifilt filter media is made of polyester fibers and is manufactured for use

in industrial applications, it is . . . a ‘[t]extile product[] . . . [or] article[ ] for technical use[ ].’” See

Airflow I, 31 CIT at 528, 483 F. Supp. 2d at 1342 (quoting Heading 5911, HTSUS) (first alteration

added).11 Accordingly, if the subject entries fall within the range of merchandise set forth in Note

7, the entries are properly classified under heading 5911. See Airflow I, 31 CIT at 528, 483 F. Supp.

2d at 1342; Heading 5911, HTSUS.

        Note 7 to Chapter 59 specifies that “[h]eading 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 heading 5908
        to 5910), the following only:



debated whether, on remand, it would be permissible to classify the merchandise at issue under
subheading 5911.10.20, given that the remand instructions in Airflow II made no mention of that
subheading, and instead framed the issue on remand as “whether Sperifilt is more properly classified
under subheading 5911.90.00, . . . or under subheading 5603.94.94.” See Airflow II, 524 F.3d at
1293. The outcome below (i.e., classification under subheading 5603.94.90) obviates any need to
reach the merits of the parties’ dispute concerning the scope of the remand.
        11
         This threshold determination was unaffected by Airflow II, which considered only “the
proper interpretation of ‘straining cloth of a kind used in oil presses or the like’– the language of
subheading 5911.40.00.” See Airflow II, 524 F.3d at 1290.
Court No. 02-00099                                                                               Page 13



        (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).

Note 7 to Chapter 59, HTSUS.12 According to the Explanatory Notes, although the textile products

and articles specified in Note 7 may be prima facie classifiable in other headings, they must be

classified within heading 5911, because they “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.” See Explanatory Notes, Heading 5911.



       12
         Certain subheadings of heading 5911 specifically cover some of the individual Note 7(a)
categories. For example, subheading 5911.10 covers Note 7(a)(i) goods; subheading 5911.20 covers
Note 7(a)(ii) goods; subheading 5911.40 covers Note 7(a)(iii) goods; and subheading 5911.90.0040
covers Note 7(a)(vi) goods. See Heading 5911, HTSUS.
Court No. 02-00099                                                                                Page 14



        Airflow II rejected Customs’ determination that Sperifilt falls within the scope of Note

7(a)(iii) to Chapter 59 and is therefore properly classified under subheading 5911.40.00. See

Airflow II, 524 F.3d at 1293. With subheading 5911.40.00 off the table, the Government now

contends that the subject entries of Sperifilt fall within the scope of Note 7(a)(i) (and thus should

be classified under subheading 5911.10.20) or, in the alternative, that the entries fall within the

scope of Note 7(b) (and are thus classifiable under subheading 5911.90.00). See generally Def.’s

Brief at 11-23; Def.’s Reply Brief at 5-15.

        As Airflow explains, however, contrary to the Government’s claims, Sperifilt does not fall

within Chapter Note 7(a)(i), “nor is it a textile ‘article’ provided for in Chapter Note 7(b).” See Pl.’s

Brief at 5; see also Pl.’s Brief at 9; Pl.’s Reply Brief at 21; see generally Pl.’s Brief at 5, 8-29, 30;

Pl.’s Reply Brief at 3-21.13 The subject entries therefore cannot be classified under heading 5911

of the HTSUS.


                                     1. Note 7(a)(i) to Chapter 59

        The Government first argues that Sperifilt filter media falls within the scope of Note 7(a)(i),

which corresponds to classification under subheading 5911.10. See generally Def.’s Brief at 5-6,13-

16, 22-23; Def.’s Reply Brief at 5-9; see also Note 7(a)(i) to Chapter 59, HTSUS; Subheading

5911.10, HTSUS (mirroring the language of Note 7(a)(i)). Note 7(a)(i) includes only those “[t]extile



        13
          Because the Court of Appeals held that Sperifilt is not classifiable under subheading
5911.40.00 (and is therefore not within the scope of Note 7(a)(iii)), and because, as both parties
observe, Sperifilt clearly does not “fall within the scope of any of the categories of goods identified
in Note [] 7(a)(ii), (iv), (v), or (vi),” consideration of Note 7 is limited to Note 7(a)(i) and Note 7(b).
See Def.’s Brief at 13; see also Pl.’s Brief at 20-22.
Court No. 02-00099                                                                              Page 15



products in the piece, cut to length or simply cut to rectangular . . . shape,” that are either: “[1]

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, [or] [2] 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).” See Note 7(a)(i) to Chapter 59, HTSUS.14

       According to the Government, Note 7(a)(i) covers fabrics that are of a “class or kind” of card

clothing material, as well as “similar fabrics” used for other technical purposes, such as Sperifilt

filter media. See Def.’s Brief at 14-16; Def.’s Reply Brief at 5-9. The Government argues that

Sperifilt falls within Note 7(a)(i) because it is a nonwoven fabric similar to felt, and Note 7(a)(i)

expressly includes “felt” and “similar fabrics.” See Def.’s Brief at 14-16; Def.’s Reply Brief at 9.

Based on this reading, the Government contends that Sperifilt is clearly a “similar fabric of a kind

used for other technical purposes.” See Def.’s Reply Brief at 8-9; Def.’s Brief at 14-15.

       As outlined below, however, Sperifilt filter media is neither a textile fabric, felt or felt-lined

woven fabric, coated, covered or laminated with rubber, leather or other material, of a kind used for

card clothing, nor a similar fabric of a kind used for other technical purposes.




       14
          In this context, the phrase “in the piece” refers to a length of material that could “vary[]
from 40 to 120 yards.” See Webster’s Third New International Dictionary 1712 (1981) (defining
“piece” as “a length varying from 40 to 120 yards of cloth suitable for processing and [especially]
for dying or finishing”); see also 11 Oxford English Dictionary 793 (2d ed. 1989) (defining “piece”
as, inter alia, “[a] length (varying according to the material) in which cloth or other textile fabric
is woven,” and explaining (as an example) that “[a] ‘piece’ of cotton cloth varies from twenty-four
to forty-seven yards in length, and from twenty-eight to forty inches in width”) (citation omitted).
Court No. 02-00099                                                                                Page 16



           a. “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”

       The subject merchandise is not a textile fabric, a felt, or a felt-lined woven fabric (regardless

of whether it may be “coated, covered or laminated with rubber, leather or other material”). Nor is

it a material “of a kind used for card clothing.”

       First, Sperifilt is not a “textile fabric.” Because Note 1 to Chapter 59 limits the term “textile

fabrics” used in Chapter 59 to “the woven fabrics of [various chapters and headings], the braids and

ornamental trimmings in the piece of heading 5808 and the knitted or crocheted fabrics of heading

6002,” Sperifilt – which is a nonwoven – is not a “textile fabric” for purposes of Note 7(a)(i). See

Note 1 to Chapter 59, HTSUS (emphasis added).15 There is no special context here which might

warrant a definition other than that provided for in the relevant chapter notes. Thus, as Airflow

argues and the Government concedes, because Sperifilt is not woven, knitted, nor crocheted, and

because it is not a braid or ornamental trimming, it cannot be considered a “textile fabric” within the

scope of Note 7(a)(i) to Chapter 59. See Pl.’s Brief at 10-11; Def.’s Brief at 13-14, 15; Note 1 to

Chapter 59, HTSUS.16




       15
           In full, Note 1 provides that: “[e]xcept where the context otherwise requires,” the
expression “textile fabrics” used in Chapter 59 “applies only to the woven fabrics of chapters 50 to
55 [covering various woven fabrics, including silk, wool and other animal hair, cotton, vegetable
textile fibers and paper yarn, man-made filaments, and man-made stable fibers] and headings 5803
[gauze] and 5806 [narrow woven fabrics and narrow fabrics consisting of warp without weft
assembled by means of an adhesive], the braids and ornamental trimmings in the piece of heading
5808 and the knitted or crocheted fabrics of heading 6002.” See Note 1 to Chapter 59, HTSUS
(emphasis added).
       16
            Similarly, because Sperifilt is nonwoven, it also cannot be considered a “felt-lined woven
fabric.”
Court No. 02-00099                                                                             Page 17



       Second, Sperifilt filter media is not a “felt.” See Def.’s Brief at 15 (acknowledging that

Sperifilt is not felt); Pl.’s Reply Brief at 4 n.2 (same). For purposes of classification under the

HTSUS, “‘felt’ and ‘nonwovens’ are distinct and separate entities” covered by separate HTSUS

headings. See Pl.’s Reply Brief at 4 n.2; Heading 5602, HTSUS (covering various types of “[f]elt”);

Heading 5603, HTSUS (covering various types of “[n]onwovens”); see also Note 3 to Chapter 56,

HTSUS (stating that “[h]eadings 5602 and 5603 cover respectively felt and nonwovens”).

Therefore, because the subject merchandise is prima facie classifiable as a heading 5603

“nonwoven” and not as a heading 5602 “felt,” it cannot be considered “felt” for purposes of Note

7(a)(i) to Chapter 59.

       Finally, Sperifilt plainly is not a textile product “of a kind used for card clothing.” “Carding”

is a process where “[a] wire-toothed brush or a machine fitted with rows of wire teeth [i.e., a carding

machine] . . . disentangle[s] fibers, as of wool, prior to spinning.” See American Heritage Dictionary

of the English Language 280 (4th ed. 2000).17 A “carding machine” is “a machine for carding wool,

cotton, or other fiber consisting of cylinders having intermeshing wire teeth and revolving at

different speeds or in opposite directions.” See Webster’s Third New International Dictionary 338

(1981); Plaintiff’s Statement fo Material Facts as to Which There is No Genuine Issue to Be Tried

(“Pl.’s Statement of Facts”) ¶¶ 17-28 (describing carding, carding machines, card clothing, and card



       17
          See also Webster’s Third New International Dictionary 337 (1981) (defining “card” as,
inter alia, “to cleanse, disentangle, and collect together (as animal or vegetable fibers) by the use
of a card preparatory to spinning, the process being used to prepare fibers of relatively short
length”); 2 Oxford English Dictionary 889 (2d ed. 1989) (defining “card” as, inter alia, “[t]o prepare
wool, tow, etc., for spinning, by combing out impurities and parting and straightening the [fibers]
with a card”).
Court No. 02-00099                                                                              Page 18



clothing foundation cloth); Defendant’s Response to Plaintiff’s Statement of Material Facts as to

Which No Genuine Issue Exists (“Def.’s Response to Pl.’s Statement of Facts”) ¶¶ 17-28 (admitting

Airflow’s descriptions, albeit disputing relevance). The cylinders of a carding machine are covered

with “card clothing,” which is “material consisting of leather or cloth in which [wire] teeth are set.”

See Webster’s Third New International Dictionary 337 (1981).18

       Here, as both parties acknowledge, Sperifilt is an air filtration medium, not a material “of

a kind used for card clothing.” See Pl.’s Brief at 11-17; Def.’s Reply Brief at 7. In other words,

Sperifilt is not used as card clothing and is not “commercially fungible” with goods used as card

clothing. See Primal Lite, Inc. v. United States, 182 F.3d 1362, 1363-64 (Fed. Cir. 1999) (stating

that “class or kind” of good referred to in ARI 1(a) is limited to “those goods that are commercially

fungible with the imported goods”). Sperifilt therefore does not fall within the scope of the first part

of Note 7(a)(i) to Chapter 59, covering certain fabrics of a kind used for card clothing. See Note

7(a)(i) to Chapter 59, HTSUS.

                 b. “[S]imilar fabrics of a kind used for other technical purposes”

       In light of the above, Sperifilt filter media can fall within the scope of Note 7(a)(i) to Chapter

59 only if it is a “similar fabric[] of a kind used for other technical purposes [i.e., other than card




       18
          See also 2 Oxford English Dictionary 887 (2d ed. 1989) (referring to “card-cloth” and
“card-clothing” as “the leather or indiarubber backing of a card”); 2 Oxford English Dictionary 886-
87 (2d ed. 1989) (defining “card” as, inter alia, “[a] sort of wire brush for the [combing out, and
setting in order the fibers of wool, hemp, etc.], consisting of a strip of leather, vulcanized rubber,
or similar material, into which short steel wires are inserted. These strips are fixed on a flat surface
or on the cylinder of a carding-machine, and the wool is passed between two sets of them working
with each other.”).
Court No. 02-00099                                                                              Page 19



clothing].” See Note 7(a)(i) to Chapter 59, HTSUS.19 According to the Government, Sperifilt is

covered by Note 7(a)(i) because it is “used for other technical purposes” and “[shares] similar

characteristics [with] the fabrics identified in Chapter 59 Note 7(a)(i).” See Def.’s Brief at 15; see

also id. at 14 (arguing that Note 7(a)(i) includes “nonwovens (such as felt), combinations of

nonwovens and textile fabrics (such as felt-lined woven fabrics), and ‘similar fabrics’”); id. at 16

(arguing that Sperifilt filter media “shares similar characteristics to ‘felt’”); Def.’s Reply Brief at

8-9 (arguing that “Sperifilt falls within the scope of Note 7(a)(i)”). But, although Sperifilt is indeed

used for “other technical purposes” (i.e., air filtration in industrial spray paint booths), Sperifilt is

not “similar” to the material described in the first part of Note 7(a)(i) to Chapter 59.

        Contrary to the Government’s claims, merchandise does not fall within the scope of Note

7(a)(i) merely because it shares characteristics with “[t]extile fabrics, felt [or] felt-lined woven

fabrics.” See Note 7(a)(i) to Chapter 59, HTSUS; Def.’s Brief at 14-16; see also Def.’s Reply Brief

at 4-9. As the text of the note makes clear, Note 7(a)(i) “similar fabrics of a kind used for other

technical purposes” must be similar to “[t]extile fabrics, felt and felt-lined woven fabrics, coated,



        19
          Although not a “textile fabric” under Note 1 to Chapter 59, a nonwoven such as Sperifilt
is nevertheless a “fabric.” See Def.’s Brief at 15 (stating that “[a]lthough not statutorily considered
a ‘textile fabric,’ or a felt, Sperifilt is certainly a fabric”); Defendant’s Additional Statement of
Material Facts as to Which No Genuine Issue Exists ¶ 1 (stating that “[a]s a nonwoven cloth,
Sperifilt is a fabric”); Plaintiff’s Response to Defendant’s Additional Statement of Material Facts
as to Which No Genuine Issue Exists ¶ 1 (admitting that “Sperifilt is a nonwoven, and that it may
be considered a ‘fabric’ under the broadest definitions,” but averring “that other definitions of
‘fabric’ are more restrictive”); see also American Heritage Dictionary of the English Language 1198
(4th ed. 2000) (defining “nonwoven” as “[m]aterial or . . . fabric made by a process not involving
weaving” that is “[u]sed of textiles”); Webster’s Third New International Dictionary 1539 (1981)
(defining “nonwoven” as something “made without weaving; esp: having textile fibers bonded
together by adhesive resins, rubber, or plastic or felted together under pressure,” e.g., “fabrics”).
Court No. 02-00099                                                                                 Page 20



covered or laminated with rubber, leather or other material,” which are the type of products “used

for card clothing.” See Note 7(a)(i) to Chapter 59, HTSUS (emphasis added); see also Def.’s Reply

Brief at 8 (stating that “Note 7(a)(i) includes fabrics which resemble ‘textile fabrics,’ ‘felt,’ and ‘felt-

lined woven fabrics’ which belong to the class to which fabrics used for ‘card clothing’ belong, but

which are used for technical purposes different than ‘card clothing’”); Pl.’s Reply Brief at 6 (arguing

that Note 7(a)(i) “similar fabrics” must be similar to fabrics “of a kind used for card clothing”). In

short, according to the terms of Note 7(a)(i), material is a “similar fabric” within Note 7(a)(i) if it:

(1) is “of a kind used for other technical purposes”; and (2) possesses qualities similar to those listed

in the first part of Note 7(a)(i).

        To accept the Government’s interpretation – that “similar” refers only to “[t]extile fabrics,

felt and felt-lined woven fabrics” – would mean that the second part of Note 7(a)(i) broadly covers

“fabrics of a kind used for technical purposes.” See Def.’s Brief at 15 (arguing that Note 7(a)(i)

“clearly includes a variety of different fabrics which are used for different technical purposes,

including ‘card clothing’ and ‘weaving’”). But, as Airflow correctly points out, any such reading

would render the first clause of Note 7(a)(i), as well as much of the remainder of Note 7(a), largely

superfluous. See Pl.’s Reply Brief at 9 & n.7 (stating that, “if the Government’s argument were

followed to its logical conclusion, all coated fabrics for all technical uses would be covered by Note

7(a)(i),” and that “many of the provisions of Note 7(a) would be subsumed within Note 7(a)(i)”).

        Here, the subject merchandise is clearly not similar to woven fabric or felt that is coated,

covered, or laminated with rubber, leather, or other material – the type of fabric used for card

clothing. See Pl.’s Brief at 18-20; Pl.’s Reply Brief at 6-10. As described above, card clothing
Court No. 02-00099                                                                               Page 21



refers to the foundation or base material “through which many fine, closely spaced, specially bent

wires project,” and which is used to cover the cylinders of carding machines that operate to card

(i.e., disentangle) various textile fibers. See Pl.’s Statement of Facts ¶¶ 18-19.20 For these reasons,

card clothing “must possess four attributes: (1) strength; (2) flexibility or elasticity; (3) support; and

(4) resistence to stretching[,]” and “must retain these attributes for a long period of time.” See Pl.’s

Statement of Facts ¶ 20; Def.’s Response to Pl.’s Statement of Facts ¶ 20; see also Pl.’s Brief at 11-

14 (describing “card clothing”).

        Further, like card clothing fabric, the only “similar fabric” specifically identified in Note

7(a)(i) – “narrow fabrics made of velvet impregnated with rubber, for covering weaving spindles”

– is also fastened to machinery for use in a mechanical process. See Note 7(a)(i) to Chapter 59,

HTSUS (providing that “similar fabrics of a kind used for other technical purposes[] includ[es]

narrow fabrics made of velvet impregnated with rubber, for covering weaving spindles (weaving

beams)”). Like Note 7(a)(i) card clothing fabric, which is “coated, covered, or laminated with

rubber, leather or other material,” these weaving spindle fabrics are impregnated with rubber,

presumably to provide the necessary strength, flexibility, and durability necessary to perform while

maintaining their shape and withstanding continuous mechanical forces. See Pl.’s Reply Brief at

8 (stating that, “[l]ike card clothing foundation cloth, [Note 7(a)(i) weaving spindle fabrics] must

necessarily possess the strength and durability to perform their function under demanding operating



        20
         See generally Pl.’s Statement of Facts ¶¶ 17-28 (describing carding, carding machines, card
clothing, and card clothing foundation cloth); Def.’s Response to Pl.’s Statement of Facts”) ¶¶ 17-28
(admitting Airflow’s descriptions, though disputing relevance); Pl.’s Brief at 11-14 (describing “card
clothing”).
Court No. 02-00099                                                                               Page 22



conditions, as well as the flexibility and elasticity to be wound around the weaving beams and not

tear or become overly elongated”).

        Comparing these characteristics to the description of Sperifilt, it is clear that Sperifilt lacks

the qualities characteristic of the fabrics described in the first part of Note 7(a)(i), and is unlike the

sole example of “similar fabrics” specified in the second part of Note 7(a)(i). See generally Pl.’s

Brief at 18-20; Pl.’s Reply Brief at 6-10.

        As discussed above, Note 7(a)(i) fabrics – whether of a kind used for card clothing or for

other technical purposes – are coated, covered, laminated, or impregnated with rubber, leather or

other material, so that they possess the necessary strength, durability, and flexibility to fulfill their

functions while withstanding the stress of mechanical forces. Sperifilt, on the other hand, is a light

and porous medium designed to trap solid particulates of varying sizes within its progressively

thickening layers during air filtration. Unlike the fabrics specified in Note 7(a)(i) which cover

and/or support parts of a machine, Sperifilt is inserted as a panel into the ventilation system of an

industrial paint spray booth, and remains stationary during the air filtration process. See Airflow

II, 524 F.3d at 1289 (describing Sperifilt); Airflow I, 31 CIT at 526, 483 F. Supp. 2d at 1340 (same);

Pl.’s Statement of Facts ¶ 7 (explaining that Sperifilt filter media is cut into panels and inserted into

paint spray booths); Def.’s Response to Pl.’s Statement of Facts ¶ 7 (same).

        Finally, although Sperifilt is impregnated with a tackifying substance and backed by a net

of polyester yarn (to provide dimensional stability under high temperature conditions and to prevent

particles from escaping), these attributes are not comparable to the rubber or leather coating,

covering, lamination, or impregnation to which Note 7(a)(i) refers. Sperifilt’s tackifying substance
Court No. 02-00099                                                                              Page 23



and polyester net backing are designed to enhance Sperifilt’s filtration capabilities. The rubber or

leather coating, covering, lamination, or impregnation of Note 7(a)(i) products, on the other hand,

is intended to strengthen the material’s flexibility and durability. For these reasons, any similarity

between Sperifilt and the “coated, covered[,] laminated” and “impregnated” fabrics described by

Note 7(a)(i) is “irrelevant.” See generally Pl.’s Reply Brief at 9.

        Thus, despite the Government’s claims to the contrary – which it bases merely on broad

dictionary definitions and without reference to the fact that “similar fabrics” must be “similar” to

fabrics that are “coated, covered or laminated with rubber, leather or other material” – Sperifilt filter

media is not similar to the fabrics identified in Note 7(a)(i) to Chapter 59. See Def.’s Brief at 14-16;

Def.’s Reply Brief at 7-9. In sum, not only are Sperifilt filter media and the specified Note 7(a)(i)

products dissimilar, but their fundamental and defining characteristics are at odds with one another:

Note 7(a)(i) products are designed to be strong, sturdy, and supportive components of moving

machines, while the subject merchandise is a porous, “high-loft,” and stationary medium for air

filtration.

        For the reasons detailed above, Sperifilt is neither a fabric “of a kind used for card clothing”

or a “similar fabric[] of a kind used for other technical purposes.” Sperifilt therefore does not fall

within the scope of Note 7(a)(i) to Chapter 59, and is not classifiable under subheading 5911.10.20

of the HTSUS.


                                     2. Note 7(b) to Chapter 59

        Sperifilt also is not a “textile article” within the scope of Note 7(b) to Chapter 59, and

therefore cannot be classified under subheading 5911.90.00, contrary to the Government’s argument
Court No. 02-00099                                                                                 Page 24



in the alternative. See Note 7(b) to Chapter 59, HTSUS (emphasis added); Def.’s Brief at 1-2, 6, 23,

25; Def.’s Reply Brief at 1, 15; see generally Def.’s Brief at 1-2, 6, 16-23, 25; Def.’s Reply Brief

at 1, 10-15.

        As set forth above, Note 7(b) covers “[t]extile articles . . . 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).” See Note 7(b) to Chapter 59, HTSUS. The

Government contends that Note 7(b) “[broadly] encompasses ‘textile articles’ which, as properly

defined, includes textile ‘products.’” See Def.’s Brief at 19; see also id. at 16-19; Def.’s Reply Brief

at 10. Based on that expansive reading, the Government argues that “Sperifilt is clearly an ‘article’

as the term is commonly defined.” See Def.’s Brief at 19; see also Def.’s Reply Brief at 10 (arguing

that “[b]ecause Sperifilt is a kind of filter media, there can be no legitimate dispute that it falls within

the meaning of the term ‘article’ and, therefore, is a ‘textile article’ within the scope of . . . Note

7(b)”).21 According to the Government, nothing in the text of the subheading, or the chapter notes,

or the Explanatory Notes precludes textile goods that are imported in rolls and cut post-importation

– such as the subject merchandise – from being classified under subheading 5911.90.00. See Def.’s

Reply Brief at 10. The Government concludes that Sperifilt is within the scope of Note 7(b) to

Chapter 59 and is classifiable under subheading 5911.90.00 because Sperifilt is a finished good


        21
          In the previous stage of this litigation, the Government initially stated that it does not claim
that the subject merchandise is a “textile article.” See Defendant’s Responses to Plaintiff’s First
Interrogatories and Requests for Production ¶ 4(a). However, as the Government points out, that
statements was “based upon [its] claims as they existed at the time [prior to decision in Airflow II].
See Def.’s Brief at 19; see also id. at 17-19.
Court No. 02-00099                                                                                Page 25



dedicated for use as an air filtration medium upon importation. See Def.’s Brief at 19; Def.’s Reply

Brief at 10-15.

        However, the Government’s claim that Note 7(b) “textile articles” encompass “textile

products” ignores Note 7’s fundamental distinction between “products” and “articles.” See

generally Pl.’s Reply Brief at 11-12 (arguing that “[i]nterpreting the unambiguous language of Note

7(b) to include both textile products and textile articles, as claimed by the Government, disregards

the clear separation of Note 7(a) and (b) and renders Note 7(a) meaningless and superfluous”).

Unlike Note 7(a), which describes a variety of “textile products” (whether “in the piece, cut to

length or simply cut to rectangular . . . shape”), Note 7(b) is strictly limited to “textile articles.” See

Note 7 to Chapter 59, HTSUS (emphases added); see also Explanatory Notes, Heading 5911, at (A)

and (B). Based on the deliberate use of these two distinct terms within the same chapter note, the

inescapable conclusion is that Note 7(a) “textile products” and Note 7(b) “textile articles” refer to

different types of goods, and Note 7 must be read and applied accordingly.

        Although sometimes used interchangeably in common parlance, the terms “product” and

“article” – for purposes of Note 7 to Chapter 59 – must be given different meanings. A “product”

is defined broadly as “something produced” by either “physical labor or intellectual effort,” “a

natural process,” or “chemical change.” See Webster’s Third New International Dictionary 1810

(1981); see also American Heritage Dictionary of the English Language 1399 (4th ed. 2000)

(defining “product” as “[s]omething produced by human or mechanical effort or by natural

process”). An “article,” on the other hand, is “a material thing[,] item, object”; “a thing of a

particular class or kind as distinct from a thing of another class or kind.” See Webster’s Third New
Court No. 02-00099                                                                               Page 26



International Dictionary 123 (1981); see also American Heritage Dictionary of the English

Language 101-02 (4th ed. 2000) (defining “article” as, inter alia, “[a]n individual thing or element

of a class; a particular object or item: [e.g.,] an article of clothing; articles of food” ).

        As discussed in greater detail below, as the terms are used in Note 7 to Chapter 59, a “textile

product” appears to refer to textile materials (e.g., textile fabrics, felts, cloth), whereas a “textile

article” refers to a textile object or item with a fixed identity and dimensions (e.g., gaskets, washers,

polishing disks). See Pl.’s Brief at 22 (explaining that “textile materials of Chapter Note 7(a) are

textile products which are used to make finished goods; the textile articles of Chapter Note 7(b) are

finished goods themselves”).

        The distinction between a “textile product” and a “textile article” for purposes of Note 7 to

Chapter 95 is illustrated by the specific examples of such goods set forth in Note 7 and in the

relevant Explanatory Notes. See Note 7 to Chapter 59, HTSUS; Explanatory Notes, Heading 5911,

at (B); see also Pl.’s Reply Brief at 12-13 (stating that “the language of Note 7(b) itself[ and] the

[Explanatory Notes] to heading 5911 . . . confirm that Note 7(b) ‘articles’ are not textile materials

imported in rolls and cut post-importation”).

        Note 7(a) provides for certain textile materials (albeit, in some cases, somewhat advanced

materials) that may be imported in rolls or bolts, such as “[b]olting cloth,” “[s]training cloth,” “[f]lat

woven textile fabrics . . . of a kind used in machinery,” and “[t]extile fabric reinforced with metal.”

See Note 7(a) to Chapter 59, HTSUS; see also Pl.’s Brief at 11 n.8 (stating that “Note 7(a) textile

products are those imported either uncut (in rolls or bolts) or subject only to certain simple cutting

steps”); Pl.’s Reply Brief at 12-13. In contrast, Note 7(b) covers specific objects or items –
Court No. 02-00099                                                                               Page 27



“machinery parts” made of textiles, such as “gaskets, washers, [and] polishing discs,” and endless

fabric used in papermaking machines – rather than textile material that may be imported in rolls or

bolts and subsequently used to make objects or items. See Note 7(b) to Chapter 59, HTSUS; see

also Pl.’s Reply Brief at 12 (stating that “Note 7(b) ‘articles’ are not textile materials imported in

rolls and cut post-importation”). Similarly, the examples of Note 7(b) articles listed in the

Explanatory Notes also include only articles that have been “made up,” i.e., “cut to shape” and/or

“assembled by sewing.” See Explanatory Notes, Heading 5911, at (B); see also Note 7 to Section

XI, HTSUS (defining “made up”).22


       22
         The Explanatory Notes state that Note 7(b) covers “[a]ll textile articles of a kind used for
technical purposes (other than those of headings 59.08 to 59.10),” for example:

      (1) Any of the fabrics of [Note 7(a)] 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.

Explanatory Notes, Heading 5911, at (B) (emphases omitted).
Court No. 02-00099                                                                            Page 28



       Indeed, the Explanatory Notes specifically make the point that Note 7(a) “textile products”

constitute the type of material from which Note 7(b) “textile articles” may be made. See

Explanatory Notes, Heading 5911, at (B)(1) (stating that Note 7(b) articles include “[a]ny of the

fabrics of [Note 7(a)] which have been made up (cut to shape, assembled by sewing, etc.)”); see also

Pl.’s Brief at 22 (explaining that “textile materials of Chapter Note 7(a) are textile products which

are used to make finished goods; the textile articles of Chapter Note 7(b) are finished goods

themselves”). In sum, 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.23

       Airflow points to case law distinguishing between certain articles (or parts thereof) and the

material from which such articles are made (which is often imported in rolls) to further bolster its

position (by analogy, if nothing else).24 As Airflow notes, “[w]here textile goods are imported ‘in


       23
         Gasket and washers, for example, are typically manufactured in standard sizes. Similarly,
polishing discs, bags for oil presses, vacuum cleaner bags, and filter bags all are generally
manufactured for use with particular models and machinery upon importation.
       24
          See, e.g., Baxter Healthcare Corp. of Puerto Rico v. United States, 182 F.3d 1333, 1339
(Fed. Cir. 1999) (considering classification of rolls of material for use as gas-exchanging membrane
of oxygenator, and concluding that material cannot be classified as part of oxygenator because “[a]t
the time of import, the individual parts cannot be discerned from the roll, and the roll nowhere marks
or otherwise identifies the individual parts to be made from it”); Harding Co. v. United States, 23
C.C.P.A. 250, 252-53 (1936) (holding that item made from asbestos yarn, wire, and mixture of other
materials, used for the sole purpose of making brake linings, was properly classified as manufacture
of yarn rather than as “part” of automobile because individual brake lining parts to be made from
material were not identified or otherwise “fixed with certainty,” and instead had to be individually
cut to custom fit each brake shoe made); United States v. Buss & Co., 5 U.S. Cust. App. 110, 113
(1914) (recognizing that “most small articles are not produced as individual or separate products of
Court No. 02-00099                                                                               Page 29



the piece’ or uncut, those goods cannot be considered or classified as ‘articles’ [when] the individual

finished articles to be made from those goods are not ‘fixed with certainty’ at the time of importation

(such as where the amount or number of unfinished goods that could be made from a particular roll

or bolt of fabric is unknown at the time of importation).” See Pl.’s Brief at 22-23; see also id. at 23-

25 (citing cases); Pl.’s Reply Brief at 14-15 (same).

        In the present case, as Airflow underscores, the subject entries of Sperifilt filter media were




the loom, but for economy of manufacture are first woven ‘in the piece,’” and stating that “where
such articles are imported in the piece and nothing remains to be done except to cut them apart they
shall be treated for dutiable purposes as if already cut apart and assessed according to their
individual character or identity,” but “only [where] the character or identity of the individual articles
is fixed with certainty and [where] the woven piece in its entirety is not commercially capable of any
other use”); Benteler Indus., Inc. v. United States, 17 CIT 1349, 1354-57, 840 F. Supp. 912, 915-18
(1993) (concluding that seamless steel tubular sections used in automobile manufacturing could be
classified as parts thereof because number of beams to be cut exactly from each section was known
prior to importation); Coraggio Design, Inc. v. United States, 12 CIT 143, 147 (1988) (considering
classification of fabric with pre-woven hems used to make drapery and stating that “[a]s the rule of
Buss and its progeny make apparent, material cannot be classified as more than woven fabric when
it is not processed to the point where the individual ‘article’ is identifiable with certainty, not cut to
specific lengths or marked for cutting, and not advanced to point where significant processing steps
no longer remain”); Bendix Mouldings, Inc. v. United States, 388 F. Supp. 1193, 1194-95 (Cust. Ct.
1974) (concluding that uncut wood moldings used only to make picture frames, but not dedicated
to making of any particular picture frame were not classifiable as unfinished frames; only as material
from which frames made); see also Pl.’s Brief at 22-25 (citing cases); Pl.’s Reply Brief at 14-15
(same). But see Ludvig Svensson (U.S.) Inc. v. United States, 23 CIT 573, 580-81, 62 F. Supp. 2d
1171, 1178-79 (1999) (classifying screening used solely in construction of greenhouses, which is
imported in rolls and cut to length to meet customer specifications, as parts of agricultural
machinery, rather than as material, because function and purpose of screening identifiable upon
importation and post-importation processing merely attributable to installation).

        The Government disputes the relevance of many of these cases cited by Airflow, objecting
that some “address whether an article is classifiable as a ‘part’ or as a ‘material,’” while others (such
as Coraggio Design and Bendix Mouldings) were decided under the predecessor to the HTSUS. See
Def.’s Reply Brief at 12; Def.’s Brief at 22 (same). The cases nevertheless speak to the distinction
between “materials” imported in rolls or lengths and “articles.” See Pl.’s Reply Brief at 15.
Court No. 02-00099                                                                              Page 30



imported as rolls that had “no pre-cuts, cutting marks, or any other indication whatsoever as to the

length and width to which the imported [media] was to be cut.” See Pl.’s Brief at 26; see also Pl.’s

Reply Brief at 12-16. Rolls of Sperifilt are generally – if not always – cut post-importation to the

specific dimensions required for installation into one of approximately 150 different spray booth

models in which it is used. See Pl.’s Brief at 26.25 Airflow further emphasizes that “Sperifilt [was]

never dedicated to filling a particular customer order at the time of importation,” and that, “[g]iven



        25
           There is some dispute as to whether the imported rolls of Sperifilt are always cut post-
importation to fit the dimension of a particular customer’s paint spray booth. There is no apparent
reason why a roll of Sperifilt could not be installed as imported, without any cutting, if some specific
application required a filter of the exact dimensions of the roll as imported. However, there is no
specific record evidence of any such use. To the contrary, the Government has acknowledged that
“‘Sperifilt filter media is cut to size to fit within individual paint spray booths according to the
orders received.’” See Def.’s Response to Pl.’s Statement of Facts ¶7, ¶8 (quoting Wittert Affidavit
(Aug. 24, 2005) ¶ 7); see also Def.’s Brief at 20 (acknowledging that Sperifilt filter media is cut to
size); Def.’s Reply Brief at 11 (same); Recording of Oral Argument at 2:13:20-2:13:40 (Government
counsel stated that “[the Government does] not dispute that Sperifilt . . . is cut; but we can also not
say that it is not used in its imported condition[.]”); Pl.’s Statement of Facts ¶ 5 (stating that “[a]ll
or virtually all (approximately 99 percent) of Sperifilt media was cut to length, and sometimes cut
to width as well, after importation into the United States and before delivery to a customer”); Pl.’s
Statement of Facts ¶ 10 (stating that “[w]hen filling a customer purchase order for Sperifilt, Airflow
. . . was always required to cut the Sperifilt” because “the required size of Sperifilt would differ for
each paint spray booth”).

        Contrary to the Government’s characterization, an Airflow representative’s statement that
“[p]aint spray booths are frequently designed so that the filter media can be unrolled as one complete
blanket to cover the spray booth ceiling rather than having the filter media installed in ring panel as
a separate framing system” indicates only that Sperifilt is sometimes used in large, single pieces, and
does not indicate that an entire roll of Sperifilt filter media, as imported, is sometimes used uncut
in its entirety in spray booths, as the Government implies. See Pl.’s Reply Brief at 19 (quoting
Wittert Affidavit (July 31, 2003) ¶ 14) (internal quotation marks omitted); see also Pl.’s Reply Brief
at 17-21 (countering Government’s characterization and attempt to dispute other statements made
by Airflow’s president and co-founder); Def.’s Brief at 22; Pl.’s Statement of Facts ¶ 8 (stating that
“[n]one of the models of paint spray booths was large enough to accommodate an entire uncut roll
of Sperifilt, as imported”).
Court No. 02-00099                                                                               Page 31



the extreme variation in sizes required for finished Sperifilt panels, it was impossible to know how

many Sperifilt panels could be made from any particular imported roll of Sperifilt at the time of

importation.” See Pl.’s Brief at 26.

        The imported item at issue here is the generic roll of Sperifilt filter media from which

individual air filters will be fashioned following importation. And although the roll of Sperifilt

possesses the necessary air filtration characteristics at the time of importation, there is no “textile

article” until the imported product is matched (and cut from the roll and shaped, if necessary) to the

precise dimensions of a specific industrial paint spray booth after importation. For all these reasons,

Sperifilt filter media, as imported, is not a “textile article” within the meaning of Note 7(b) to

Chapter 59 of the HTSUS.

        Nor can the subject merchandise be considered an “incomplete” textile article within Note

7(b) by application of GRI 2(a), as the Government seeks to argue. See Def.’s Brief at 20 (arguing

that “even if Sperifilt could be considered an ‘incomplete’ textile article in its imported condition,

it would nevertheless fall within Chapter 59 Note 7(b)” because at the time of importation “Sperifilt

has . . . all of the essential characteristics of a filtration media which is actually used in paint spray

booths”); see generally Def.’s Brief at 20-21; Def.’s Reply Brief at 11-15; but see Pl.’s Reply Brief

at 16-21 (disputing the Government’s argument on this point).

        Addressing certain incomplete or unfinished articles, GRI 2(a) provides, in relevant part, that

“[a]ny reference in a heading to an article shall be taken to include a reference to that article

incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the

essential character of the complete or finished article.” See GRI 2(a), HTSUS (emphasis added);
Court No. 02-00099                                                                               Page 32



see also Explanatory Notes, GRI 2(a), at (I) (stating that GRI 2(a) “extends the scope of any heading

which refers to a particular article” to include incomplete or unfinished version of article so long as

it possess “essential character of the complete or finished article”). Thus, unless the terms of a

heading require otherwise, GRI 2(a) essentially functions to expand the scope of any GRI 1 analysis

to include certain unfinished articles. See ABB, Inc. v. United States, 421 F.3d 1274, 1276 n.4 (Fed.

Cir. 2005) (stating that “[a]lthough it is well settled law that merchandise is classified according to

its condition when imported, [GRI] 2(a) provides that any reference in a heading to an article shall

be taken to include a reference to that article entered unassembled” (internal quotation marks and

citation omitted)).

       Here, the Government argues that, even if Sperifilt is considered “incomplete” upon

importation, it nevertheless falls within the scope of Note 7(b) to Chapter 59 by virtue of GRI 2(a),

because it possesses the essential characteristics of an industrial paint spray booth air filter. See

Def.’s Brief at 20-21; Def.’s Reply Brief at 11-12. According to the Government, the “simple

cutting” required to fashion a filter panel to fit into a particular spray booth’s dimensions “does not

alter the essence, character, or use of Sperifilt [filter media].” See Def. Reply Brief at 11.

       However, as outlined above, interpreting the language of Note 7(b) to include both textile

products (whether referred to as textile material, “unfinished” textile articles, or otherwise) in

addition to “textile articles” would “disregard[] the clear separation of Note 7(a) and (b) and render[]

Note 7(a) meaningless and superfluous.” See Pl.’s Reply Brief at 11; see also Faus Group, Inc. v.

United States, 28 CIT 1879, 1904 n.44, 358 F. Supp. 2d 1244, 1266 n.44 (2004) (noting that GRI

1 limits the scope of GRI 2(a) to only those situations where “such headings or notes do not
Court No. 02-00099                                                                             Page 33



otherwise require” (quoting GRI 1, HTSUS) (internal quotation marks omitted)).

       The Government’s GRI 2(a) theory ignores the fact that the HTSUS term at issue is “textile

articles,” not “industrial paint spray booth air filters.” Contrary to the Government’s claim, for a

good to be classified as an incomplete or unfinished “textile article” of heading 5911 (as specified

in Note 7(b)), GRI 2(a) requires that it possess, among other things, the essential character of a

“textile article.” See GRI 2(a), HTSUS; Heading 5911, HTSUS. And, as detailed above, an

essential characteristic of a Note 7(b) “textile article” is dimensions fixed with certainty upon

importation. The Sperifilt at issue here cannot be classified as unfinished “textile articles,” because

– as imported, in unmarked rolls – Sperifilt lacks the fixed dimensions of a Note 7(b) “textile

article.” See Pl.’s Reply Brief at 16-17 (quoting Customs headquarters ruling letter stating “that for

textile materials . . . to be classified under the HTSUS as unfinished articles pursuant to GRI 2(a),

the identity of the finished articles to be made from those materials must be fixed with certainty”

(internal quotation marks and citation omitted)).

       Notwithstanding Sperifilt’s air filtration capabilities upon importation, an unmarked roll of

Sperifilt filter media, as imported, does not possess the character of an individual air filter panel

(which arguably could be considered a “textile article”). Because a roll of Sperifilt filter media lacks

the fixed dimensions and identity central to classification as a “textile article,” it does not possess

the “essential character” of a completed “textile article,” and therefore cannot be considered an

“incomplete” or “unfinished” textile article pursuant to GRI 2(a).

       To be sure, an imported roll of filter media will at some point most likely be fashioned into

one or more textile “articles,” i.e., panels of air filter media. But because the requisite dimensional
Court No. 02-00099                                                                               Page 34



characteristics of such “textile articles” were not established or designated at the time of importation,

a roll of Sperifilt filter media is neither a completed Note 7(b) “textile article” nor an “incomplete”

or “unfinished” Note 7(b) “textile article.” For the foregoing reasons, the subject merchandise is

not covered by Note 7(b) to Chapter 59, and thus is not classifiable under subheading 5911.90.00

of the HTSUS.


                                           B. Heading 5603

        Because the subject merchandise is not within the scope of Note 7 to Chapter 59, it is not

classifiable under heading 5911. Thus, the Explanatory Note to heading 5603 that excludes

classification thereunder in instances where a good is also prima facie classifiable under heading

5911 is inapplicable.

        As set forth above, the entries of Sperifilt at issue here cannot be classified under heading

5911 of the HTSUS. The competing heading – which Airflow presses – is heading 5603, which

covers “Nonwovens, whether or not impregnated, coated, covered or laminated.” See Heading 5603,

HTSUS; Pl.’s Brief at 1, 5, 30; Pl.’s Reply Brief at 21-22.26

        Goods classified within Chapter 56 are “textile products of a special character, e.g., wadding,

felt, nonwovens, special yarns, cordage and certain articles of these materials.” See General

Explanatory Notes, Chapter 56 (emphasis added). A heading 5603 “nonwoven” is “a sheet or web


        26
          Note 3 to Chapter 56 provides that heading 5603 covers nonwovens that are “impregnated,
coated, covered or laminated with plastics or rubber whatever the nature of these materials (compact
or cellular),” and that the heading “also includes nonwovens in which plastics or rubber forms the
bonding substance.” See Note 3 to Chapter 56, HTSUS. Note 3 to Chapter 56 also describes a
number of goods that are excluded from classification under heading 5603, but which have no
bearing on this case. See Note 3 to Chapter 56, HTSUS.
Court No. 02-00099                                                                            Page 35



of predominantly textile [fibers] oriented directionally or randomly and bonded.” See Explanatory

Notes, Heading 5603.27 The fibers of a nonwoven “may be of natural or man-made origin,” and

“may be staple [fibers] (natural or man-made) or man-made filaments or be formed in situ.” See

Explanatory Notes, Heading 5603. Nonwovens “can be produced in various ways and [their]

production can be conveniently divided into . . . three stages: web formation, bonding [including

thermal bonding] and finishing.” See Explanatory Notes, Heading 5603; see also Explanatory

Notes, Heading 5603, at I, II, and III (describing web formation, bonding, and finishing).28

       The Explanatory Notes provide that, “[e]xcept where they are covered more specifically by

other headings in the Nomenclature, [heading 5603] 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).” See Explanatory Notes,

Heading 5603 (emphasis omitted). In addition, among other things, the Explanatory Notes expressly

state that heading 5603 covers “[nonwoven] sheets for filtering liquids or air.” See Explanatory




       27
         “Nonwoven” is defined as “[m]aterial or . . . fabric made by a process not involving
weaving.” See American Heritage Dictionary of the English Language 1198 (4th ed. 2000); see also
Webster’s Third New International Dictionary 1539 (1981) (defining “nonwoven” as something
“made without weaving; [especially] having textile fibers bonded together by adhesive resins,
rubber, or plastic or felted together under pressure,” e.g., “fabrics”).
       28
          The Explanatory Notes further indicate that “[n]onwovens differ in thickness and in their
characteristic features (flexibility, elasticity, resistance to tearing, absorbency, stability, etc.)
according to the manufacturing or bonding process, the density of the [fibers] or filaments and the
number of webs”; and that “the fact that the textile [fibers] or filaments are bonded throughout the
thickness, and generally throughout the width, of the web or sheet also helps to distinguish these
fabrics from certain types of wadding of heading 56.01 [(covering, inter alia, wadding of textile
materials)].” See Explanatory Notes, Heading 5603.
Court No. 02-00099                                                                            Page 36



Notes, Heading 5603.29 Heading 5603 “nonwovens” may also be “covered on one or both surfaces

(by gumming, sewing or by any other process) with textile fabric or with sheets of any other

material,” so long as they continue to “derive their essential character from the nonwoven.” See

Explanatory Notes, Heading 5603, at III.

       In the case at bar, both parties agree that Sperifilt is prima facie classifiable under heading

5603. See Def.’s Brief at 23 (stating that, “as [the Government has] previously acknowledged,

Sperifilt is a nonwoven and is prima facie classifiable in Heading 5603”); Pl.’s Brief at 7, 30; Pl.’s

Reply Brief at 21; see also Airflow II, 524 F.3d at 1290 (stating that “[t]he [G]overnment did not

dispute that Sperifilt is prima facie classifiable under heading 5603”); Airflow I, 31 CIT at 527, 483

F. Supp. 2d at 1341 (noting that “[t]he Government does not dispute that Sperifilt filter media is

prima facie classifiable under HTSUS heading 5603”).

       Indeed, in light of Airflow II and the analysis of heading 5911 set forth above, the subject

entries of Sperifilt must be classified under heading 5603. Sperifilt filter media is a nonwoven made

of thermobonded polyester staple fibers, impregnated with an adhesive, and attached to a polyester

yarn backing. The language of heading 5603 expressly covers impregnated nonwovens. And

although Sperifilt incorporates a polyester yarn backing, that backing does not remove Sperifilt from

the scope of heading 5603. See Explanatory Notes, Heading 5603, at III.30 Moreover, as noted


       29
        See, e.g., FilmTec, 27 CIT 1730, 293 F. Supp. 2d 1364 (classifying nonwoven fabric sheets
imported in rolls and used as part of filter medium under heading 5603, rather than heading 5911).
       30
         The nonwoven “component” constitutes 78 % of the subject merchandise’s weight, and the
additional elements – the adhesive and the polyester backing – merely enhance and provide stability
for the nonwoven medium, which is “layered and assembled in such a way as to achieve a weight
and thickness sufficient to create a filter medium.” See Joint Statement of Material Facts at ¶¶ 11-
Court No. 02-00099                                                                            Page 37



above, the Explanatory Notes specifically provide that heading 5603 covers nonwoven air filtration

media, such as Sperifilt. See Explanatory Notes, Heading 5603.

       Because “[t]he weight of the completed Sperifilt filter media ranges between 540 and 600

g/m2,” the appropriate subheading is subheading 5603.94.90, which covers “Nonwovens, whether

or not impregnated, coated, covered or laminated: Other: Weighing more than 150 g/m2: Other:

Other,” and is duty-free. See Subheading 5603.94.90, HTSUS; Joint Statement of Material Facts

at ¶11, ¶12 (describing components of Sperifilt filter media, and explaining that each sheet of

polyester staple fiber (several of which are bonded together to form the nonwoven media) weighs

approximately 50 g/m2).


                                          IV. Conclusion

       In light of Airflow II and for all the reasons set forth above, the subject entries of Sperifilt

filter media must be classified under subheading 5603.94.90 of the HTSUS. Plaintiff’s motion for

summary judgment must therefore be granted, and Defendant’s cross-motion is denied.

       Judgment will enter accordingly.


                                                    /s/ Delissa A. Ridgway
                                                __________________________________
                                                         Delissa A. Ridgway
                                                                Judge

Decided: October 31, 2011
         New York, New York



15; see also Pl.’s Statement of Facts ¶ 1 (stating that, “[w]ith the exception of . . . paragraph 6,
Plaintiff repeats and reincorporates ¶¶ 1-28 of the parties’ joint statement of material facts as to
which there is no genuine issue to be tried, submitted in connection with the original proceeding in
this case”).
                                            ERRATA

Airflow Technology, Inc. v. United States, Court No. 02-00099, Slip Op. 11-136, dated October 31,
2011.

Page 6:       In line three, replace “covered” with “covers”.

Page 6:       In line seven of the first paragraph of footnote 5, replace “dust collecting systems,”
              with “dust collecting systems,’ ”. (In other words, insert a single quotation mark
              following “systems,” to parallel the single quotation mark that appears before the
              phrase “for gas cleaning” and thus to close the internal quotation.)

Page 6:       In line six of the second paragraph of footnote 5, replace “liquid as merely” with
              “liquid merely as”.

Page 9:       In line two, replace “Chapter and Section Notes” with “Section and Chapter Notes”.

Page 10:      In line five of the first full paragraph, replace “organization” with “Organization”.


Page 10:      In the last line of the main text, replace “Mita Copystar, 21 F.3d at 1082” with “Mita
              Copystar America v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994)”.

Page 11:      In the first line of footnote 10, replace “devote” with “devoted”.

Page 12:      In line six of footnote 10, replace “subheading 5603.94.94” with “subheading
              5603.94.90”.

Page 14:      In line four of footnote 13, replace “Note []” with “Note[]”. (In other words, delete
              the space between “Note” and the brackets.)

Page 16:      In line seven of the second full paragraph, replace “nor” with “or”.

Page 16:      In line four of footnote 15, replace “stable” with “staple”.

Page 17:      In the penultimate line, replace “Plaintiff’s Statement fo Material Facts” with
              “Plaintiff’s Statement of Material Facts”.

Page 19:      In line eight, replace “spray paint booths” with “paint spray booths”.

Page 19:      In line nine, replace “material” with “materials”.

Page 21:      In line eight of the first full paragraph, replace “durability necessary to perform” with
              “durability to perform”.
Page 21:   In line two of footnote 20, replace “Statement of Facts”) ¶¶ 17-28” with “Statement
           of Facts ¶¶ 17-28 ”.

Page 22:   In the penultimate line, delete “rubber or leather”.

Page 23:   In lines one to two, delete “rubber or leather”.

Page 24:   In line 11 of the first full paragraph, replace “chapter notes” with “Chapter Notes”.

Page 24:   In line four of footnote 21, replace “statements” with “statement”.

Page 24:   In lines four to five of footnote 21, replace “time [prior to decision in Airflow II].
           See Def.’s Brief” with “time [prior to decision in Airflow II].” See Def.’s Brief”.
           (In other words, insert quotation marks at the end of line four, to close the quote,
           before “See Def.’s Brief”.)

Page 26:   In line two of the second full paragraph, replace “Chapter 95” with “Chapter 59”.

Page 26:   In line four of the second full paragraph, replace “itself[ and]” with “itself[] [and]”.

Page 27:   In footnote 22, in the first line of the indented subparagraph numbered (9), replace
           “plant” with “plant[s]”.

Page 28:   In the first line of footnote 23, replace “Gasket” with “Gaskets”.

Page 28:   In lines seven and eight of the first paragraph of footnote 24, replace “classified as
           manufacture of yarn” with “classified as “manufacture” of yarn”.

Page 29:   In line 24 of the first paragraph of footnote 24, replace “not advanced to point” with
           “not advanced to a point”.

Page 29:   In line 27 of the first paragraph of footnote 24, replace “any particular picture frame
           were not classifiable as unfinished frames; only” with “any particular picture frame,
           were not classifiable as unfinished frames, but only”.

Page 29:   In the penultimate and last lines of the first paragraph of footnote 24, replace
           “screening identifiable upon importation and post-importation processing merely
           attributable to installation” with “screening was identifiable upon importation, and
           post-importation processing was merely attributable to installation”.

Page 30:   In line three of the second paragraph of footnote 25, replace “panel” with “panels”.

Page 32:   In line five of the first full paragraph, delete “into”.


                                              -2-
Page 35:    In line four of footnote 28, replace “number of webs”; and that” with “number of
            webs,” and that”. (In other words, replace the semicolon with a comma that is, as
            indicated, inside the quotation marks.)


November 10, 2011




                                           -3-
