CLA-2; CO:R:C:T 953056 ch
District Director
U.S. Customs Service
4430 E. Adamo Drive
Suite 301
Tampa, Florida 33605
RE: Application for further review of Protest No. 1801-92-
100019 classification of textile filter material and
woven wire mesh cloth; straining cloth; oil press;
essential character; material lengths; HRL 950284
affirmed; Takashima; Chapter 59, note 7; technical use
fabrics, products and articles.
Dear Madam:
The above-referenced protest was forwarded to this office
for further review. We have considered the protest and our
decision follows.
FACTS:
The subject merchandise are described as filter material and
woven wire mesh cloth. The filter material is imported in rolls
200 to 300 feet in length and consists of woven polyester filter
belting material which is constructed by weaving monofilament
fibers having cross-sectional dimensions of less than 1.0
millimeter into various weave patterns. After importation, the
material is cut to length specifications and linking devices are
added. The material is then made up into a closed loop. The
completed belts are used as filtration media for water treatment
and water purification processes.
The woven wire mesh cloth is imported in rolls measuring
approximately 100 feet in length and in widths ranging from 24
inches to 60 inches. The importer, GKD-USA, states that 95
percent of the wire mesh will be used for filtration purposes,
primarily in liquid-solid filtration processes. The balance of
this merchandise will be used for sound suppression in the
aerospace industry.
At a meeting held at Customs Headquarters, on March 9, 1993,
the importer, GKD-USA, abandoned that part of this protest
contesting the classification of the woven wire mesh cloth in
subheading 7314.11.90, HTSUSA, which provides for provides for
woven cloth of steel wire. Accordingly, the portion of the
protest relating to the woven wire mesh cloth shall be denied.
Moreover, in a supplemental submission dated March 18, 1993,
GKD acknowledges that the filter material in question is not
endless (i.e. made up into a closed loop) or fitted with linking
devices. Therefore, it is not classifiable under subheadings
5911.31 or 5911.32, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), which provides for textile fabrics and
felts, endless or fitted with linking devices, of a kind used in
papermaking or similar machines. Hence, we will not address that
part of the protest relating to these provisions.
ISSUE:
Whether the filter material is classified under subheading
5911.40, HTSUSA, which provides for straining cloth of a kind
used in oil presses or the like for technical uses; or subheading
5911.90, HTSUSA, which provides for other textile products and
articles for technical uses?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI). GRI 1 provides that
classification is determined first in accordance with the terms
of the headings of the tariff and any relative section or chapter
notes. Where goods cannot be classified on the basis of GRI 1,
the remaining GRI will be applied in order.
Heading 5911, HTSUSA, provides for textile products and
articles, for technical uses, specified in note 7 to this
chapter. This provision did not have a specific counterpart
under the Tariff Schedules of the United States (TSUS). Under
the TSUS, item 358 provided for belting and belts, for machinery,
of textile fibers. However, heading 5911, HTSUSA, also
encompasses certain textile fabrics which were formerly
classified as woven fabrics pursuant to item 338, TSUS. Under
heading 5911, the specified fabrics, products and articles are
classified together on the basis that they are "for technical
uses."
The phrase "for technical uses" is not defined in the
HTSUSA. However, the Explanatory Notes (EN) to the Harmonized
Commodity Description and Coding System, which constitute the
official interpretation of the nomenclature at the international
level, offer some general guidance regarding the meaning of this
phrase. The EN to heading 5911 state, in pertinent part, that:
The textile products and articles of this heading
present particular characteristics which identify them
as being for use in various types of machinery,
apparatus, equipment or instruments or as tools or
parts of tools.
As described above, the instant filter material will be made up
into belts for use as filtration media in machinery and equipment
for the dewatering of industrial and municipal waste. Thus, it
appears that this merchandise falls generally within the scope of
heading 5911.
Section XI, chapter 59, note 7, HTSUSA, specifically
describes the goods which are encompassed by heading 5911. This
note states that:
Heading 5911 applies to the following goods, which do
not fall in any other heading of section XI:
(a) Textile products in the piece, cut to length
or simply cut to rectangular (including
square) shape (other than those having the
character of the products of headings 5908 to
5910), the following only:
(i) Textile fabrics, felt and felt-
lined woven fabrics, coated,
covered or laminated with rubber,
leather or other material, of a
kind used for card clothing, and
similar fabrics of a kind used for
other technical purposes;
(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 fabric 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 metals;
(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).
Under the terms of chapter 59, note 7(a), only the textile
fabrics and products enumerated in 7(a)(i) through 7(a)(vi) fall
within the purview of heading 5911. Note 7(b) enlarges the scope
of this heading to include textile articles of a kind used for
technical purposes.
In Headquarters Ruling Letter (HRL) 950284, dated March 19,
1992, we classified filter material substantially similar to the
instant merchandise under subheading 5911.40, which provides for
straining cloth of a kind used in oil presses or the like. The
EN to heading 5911 describe "straining cloth of a kind used in
oil presses or the like" as:
...(e.g. woven filter fabrics and needled filter
fabrics), whether or not impregnated, of a kind used in
oil presses or for similar filtering purposes (e.g., in
sugar refineries or breweries) and for gas cleaning or
similar technical applications in industrial dust
collecting systems. The heading includes oil filtering
cloth, certain thick heavy fabrics of wool or of other
animal hair, and certain unbleached fabrics of
synthetic fibres (e.g., nylon) thinner than the
foregoing but of a close weave and having a
characteristic rigidity. It also includes similar
straining cloth of human hair. (Emphasis added).
In HRL 950284, we concluded that:
This language indicates that the drafters of the tariff
schedule have included in their definition of
"straining cloth" a much broader range of articles than
those that are merely used in oil presses.
This finding is supported by the text of the EN to heading 5911,
which state that the phrase "oil presses or the like" should be
interpreted to include filtering fabrics for sugar refineries,
breweries, gas cleaning or dust collecting systems.
We went on to state:
We next address whether a "straining cloth" is
different than a "filtering" cloth or belt. It is this
office's opinion that the terms are synonymous as
evidenced by the common usage of the word "strain" and
the identical functions of straining cloths and
filtering cloths or belts. Webster's New Riverside
University Dictionary (Riverside 1984) defines "strain"
as "to pass (a substance) through a filtering agent;
... to remove or draw off by filtration." In other
words, to strain is to filter and, by analogy, a
straining cloth or belt.
On this basis, we concluded that the phrase "straining cloth of a
kind used in oil presses or the like" should be construed so as
to include all filtering cloths designed to separate solid matter
from fluid and which are for technical uses. Therefore, the
filter material at issue in HRL 950284 was classified in the
subheading for straining cloths, despite the fact that it was not
used in oil presses.
In GKD's supplemental submission of March 18, 1993, counsel
contends that our construction of the phrase "straining cloth of
a kind used in oil presses or the like" is far too liberal. He
reasons that "the text of subheading 5911.40 is worded so as to
capture more than filter cloths for oil presses, but it is
limited to those filter cloths that bear some semblance ("or the
like") to the ones used for oil presses." Several arguments,
discussed more fully below, are advanced to demonstrate that
filter material for water purification purposes bears no
resemblance to straining cloths used in oil presses. As a
result, counsel concludes that subheading 5911.40 does not
describe the instant merchandise, and classification of this
material devolves to subheading 5911.90, the basket provision for
technical use products or articles not more specifically
described under heading 5911.
To support the theory that the HTSUSA places a limit on
cloths which are "like" those used in oil presses, counsel makes
three relevant observations. First, he directs our attention to
subheadings 5911.31, 5911.32 and the subheading EN for subheading
5911.90. Subheadings 5911.31 and 5911.32 provide for textile
fabrics, endless or fitted with linking devices, of a kind used
in papermaking or similar machines. Although the instant
material is not classifiable under these subheadings because it
is not endless or fitted with linking devices, counsel deems it
significant that the scope of this provision is limited to
fabrics of a kind used in papermaking or similar machines. In
addition, the EN for subheading 5911 state specifically that
articles of a kind used in paper-making or similar machines fall
within its ambit.
Second, counsel contends that the physical attributes of the
instant filter material is similar to filters used in paper-
making machines. Specifically, he points out that the mesh size
of the instant filters are on the order of 15 times the size of
filters typically utilized in oil presses. He has also submitted
supporting documents which tend to support the proposition that
the subject merchandise resembles those filters used in paper-
making machines.
Finally, counsel cites the trade allocations in the
conversion from the TSUS to the HTSUSA, USITC Publication 1400,
Annex II. These citations indicate that the International Trade
Commission (ITC) allocated item 358.5040, TSUS, the provision for
clothing for paper-making, printing, or other machines, in the
piece or as units, of man-made fiber textile materials to HTSUSA
subheadings 5911.10, 5911.31, 5911.32 and 5911.90, but not to
5911.40, the subheading for straining cloth. On this basis, he
argues that the ITC intended for all textile paper-making cloth
which are not classifiable under subheadings 5911.10, 5911.31 and
5911.32 to be classified pursuant to subheading 5911.90.
We have contacted the ITC and have been assured that there
was no specific intent on their part for all paper-making cloth
to be classified under subheading 5911.90. Moreover, drawing
such a conclusion from the conversion allocations is unwarranted
in this case since, as counsel admits, heading 5911 had no analog
under the TSUS. Indeed, the presence of provisions for cloth of
paper-making machines within heading 5911, HTSUSA, may merely be
the result of language carried over from item 358.5040, TSUS.
Hence, we discount entirely the proffered conversion materials.
Furthermore, as noted above, chapter 59, note 7(a),
prescribes that textile fabrics are not classifiable under
heading 5911 unless they are one of the fabrics or products
identified in notes 7(a)(i) through 7(a)(vi). Straining cloth is
a technical use fabric pursuant to note 7(a)(iii). However if,
as counsel argues, the subject filter material is not
classifiable as straining cloth, we have determined that it does
not meet the specifications of notes 7(a)(i) through 7(a)(vi).
Therefore, the filter material would not be classifiable as a
technical use fabric, and would be properly classified under
subheading 5407.60.20, which provides for other woven fabrics of
synthetic filament yarn. It is interesting to note that this
subheading is dutiable at 17 percent, which is the same rate as
the straining cloth provision of heading 5911.
Counsel appears to anticipate this result by arguing that
the filter material is an "article," despite the fact that it is
imported in material lengths. Assuming, for the sake of
argument, that this is the case, the material could be classified
as a technical use article pursuant to chapter 59, note 7(b).
Specifically, the subheading EN to heading 5911 state:
Articles formed of linked monofilament yarn spirals and
having similar uses to the textile fabrics and felts of
a kind used in paper-making machines fall in this
subheading and not in subheading 5911.31 or 5911.32.
(Emphasis added).
Thus, the filter material would be classified pursuant to
subheading 5911.90 if it is an "article."
In support of this theory, our attention is drawn to
Takashima v. United States, CIT Slip Op. 92-216 (1992). In
Takashima, the merchandise at issue were two types of laminated
polyethylene sheeting which were cut to length and width and came
in various sizes and colors. The Court of International Trade
found that under the TSUS the term "articles" includes both
"intermediate and finished products." As the polyethylene
sheeting had been cut to specific sizes and widths, they were
"intermediate articles" which were classifiable as completed
articles under the TSUS.
However, Takashima was decided under the TSUS and has no
application under the HTSUSA. The merchandise at issue in that
case would now be classifiable pursuant to Chapter 39, HTSUSA,
which provides for plastics and articles thereof. Chapter 39,
note 10, states:
In headings 3920 and 3921, the expression "plates,
sheets, film, foil and strip" applies only to plates,
sheets, film, foil and strip (other than those of
chapter 54) and to blocks of regular geometric shape,
whether or not printed or otherwise surface-worked,
uncut or cut into rectangles (including squares) but
not further worked (even if when so cut they become
articles ready for use).
As this language makes clear, the polyethylene sheeting at issue
in Takashima would not be classified as an article under the
HTSUSA. Therefore, we are not bound to classify the instant
material imported in material lengths as an article.
Ultimately, the subject merchandise is classifiable as
either a technical use fabric of heading 5911; or as a woven
textile fabric of heading 5407. As the EN to heading 5911
evidence an intent to encompass products used in machinery, we
conclude that heading 5911 is the appropriate classification for
this type of merchandise. Therefore, we affirm HRL 950284, which
held that the term "straining cloth of a kind used in oil presses
or the like" refers to all filter cloth which separate solids
from liquids and which are for technical purposes. Hence, the
instant filter material is also classifiable under subheading
5911.40.
HOLDING:
Therefore, based on the foregoing discussion, this protest
should be denied in full.
The woven wire mesh cloth is classifiable under subheading
7314.11.9000, HTSUSA, which provides for cloth (including endless
bands), grill, netting and fencing, of iron or steel wire;
expanded metal of iron or steel: woven products: of stainless
steel: with meshes finer than 36 wires to the lineal centimeter
in warp or filling: other. The applicable rate of duty is 7.2
percent ad valorem.
The polyester filter material is classifiable under
subheading 5911.40.0000, HTSUSA, which provides for textile
products and articles, for technical uses, specified in note 7 to
this chapter: straining cloth of a kind used in oil presses or
the like, including that of human hair. The applicable rate of
duty is 17 percent ad valorem.
A copy of this decision should be attached to the CF 19 Notice of
Action to satisfy the notice requirement of section 174.30(a),
Customs Regulations.
Sincerely,
John Durant, Director