CLA-2 CO:R:C:T 950733 ch
District Director
U.S. Customs Service
477 Michigan Avenue
Patrick V. McNamara Building
Room 200
Detroit, Michigan 48226-2568
RE: Application for further review of Protest No. 3801-89-
002625 under 19 U.S.C., section 1514(c)(2);
classification of filters used in blood filtration;
technical use fabric; bolting cloth; straining cloth;
of a kind used in oil presses and the like; filtering
cloth; HRL 950284.
Dear Sir:
This is a decision on application for further review of a
protest timely filed by John V. Carr & Son, Inc. We have
considered the protest and our decision follows.
FACTS:
The instant merchandise is a woven fabric of nontextured
polyester filaments. The submitted sample is 6.5 inches wide
(16.5 cm) and features uniform 28 micron (0.028 mm) mesh
openings. The protestant states that the material is used as a
filtration medium for blood purification.
Protestant has also submitted two swatch books containing
similar filter materials. These books are from the Saati
Filtration Division and are entitled "monofilament synthetic mesh
for filtration and industrial applications." One book features
various polyester monofilament fabrics, while the other contains
certain nylon monofilament fabrics. These materials possess mesh
sizes ranging from 1820 microns (1.820 mm) down to 15 microns
(0.015 mm). All of the submitted samples possess mesh openings
that are geometrically uniform in both size and shape.
Although the filter fabrics are in this instance used in the
blood filtration industry, marketing materials which have been
provided to this office support protestant's claim that they may
be used for various sifting operations in the flour mill and
abrasive grains industries, as screen fabrics in the screening
industry, as hydraulic filters in the aerospace industries, as
transmission filters and fuel injection filters in the automotive
industries, as well as chromatography separators in research
laboratories.
The instant material was liquidated under heading 5407
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), which provides generally for woven fabrics of synthetic
filament yarn. The protestant's claimed classification is under
subheading 5911.20, HTSUSA, which provides for bolting cloth for
technical uses. In light of the arguments raised by the
protestant, you argue that the material should have been
liquidated under subheading 5911.40, HTSUSA, which provides for
straining cloth for technical uses.
ISSUE:
What is the proper tariff classification for the subject
merchandise?
LAW AND ANALYSIS:
Heading 5911
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 Chapter 59,
HTSUSA. 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 at page
822, 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.
Thus, certain textile products possessing characteristics
identifying them as being for use in machinery are classifiable
in heading 5911. In this instance, the material is a textile
cloth designed for use as a filtration media in blood
purification machinery or apparatus. For this reason, 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). (Emphasis added).
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. Note 7(b) is inapplicable in this case as
the filter material has been imported in material lengths.
Hence, the filter material is classifiable within heading 5911
only if it is one of the fabrics and products set forth in notes
7(a)(i) through 7(a)(vi) of Chapter 59.
Of the fabrics and products set forth in these notes, we
have determined that only note 7(a)(ii), which provides for
bolting cloth, and note 7(a)(iii), which provides for straining
cloth of a kind used in oil presses or the like, of textile
material or human hair, may describe the instant filter material.
Filter Fabrics
The Fairchild's Dictionary of Textiles has described "filter
cloth" as follows:
A general term for a number of different fabrics used
for filtering purposes, ranging from fine flour filter
fabric (bolting cloth) made of silk or synthetic
fibers, to very coarse cotton or man-made fiber filter
fabric. The cloths vary in weave, weight, fiber, size
of yarns and all other features. Man-made fibers are
very useful as industrial filtering cloths because of
their resistance to the action of many chemicals.
This language indicates that filter fabrics include bolting
cloths, as well other industrial filtering cloths.
Bolting Cloth
The following standard lexicographic sources define the
terms "bolt" and "bolting cloth" as follows:
The Century Dictionary and Cyclopedia, The Century
Company (1911): bolt1 vt 1.: To sift or pass through
a sieve or bolter so as to separate the coarser from
the finer particles, as bran from flour; sift out: as,
to bolt meal; to bolt out the bran; bolt2 n. 1.: A
sieve; a machine for sifting flour; bolting-cloth n.:
A cloth for bolting or sifting; a linen, silk, or hair
cloth, of which bolters are made for sifting meal, etc.
The finest and most expensive silk fabric made is
bolting-cloth, for the use of millers, woven almost
altogether in Switzerland.
Funk & Wagnals New Standard Dictionary of the English
Language, (1928): bolting, n. 1.: The act or process
of sifting, usually in a mill or machine; b. cloth 1.:
A fabric, usually of unsized silk, for separating the
various products of a flouring mill.
The Wellington Sears Handbook of Industrial Textiles,
Ernest R. Kaswell (1963): bolting cloth: Light
weight, finely woven silk and nylon bolting cloths made
in precise mesh sizes are extensively used industrially
for sifting and screening purposes. These extremely
uniform filament yarn constructions in leno weaves are
manufactured principally in Switzerland on special
looms, requiring a high degree of skill on the part of
the operator to achieve weaving perfection.
Bolting cloths are designated by the number of
interstices or openings per linear inch, in the same
manner as fine wire screening. For example, a 200 mesh
bolting cloth has 200 openings per inch in both the
warp and filling directions. The size of the openings
must also be specified, as yarns of different deniers
provide different size interstices for a given mesh
cloth...
Silk bolting cloths are generally used for dry sifting
processes, with the filament nylon cloths preferred for
wet screening operations such as those employed in
starch and flour manufacturing. Both types of fabrics
are also widely used by the textile industry in screen
printing.
Webster's Third New International Dictionary, Merriam-
Webster (1986): bolt 1.: to sift (as meal or flour)
usu. through fine-meshed cloth; also: to refine and
purify (as meal or flour) through any process; bolting
cloth: a firm fabric now usu. of silk woven in various
mesh sizes for bolting (as flour) or for use in screen
printing, needlework, or photographic enlargements.
Fairchild's Dictionary of Textiles: bolting cloth: A
plain weave fabric originally of silk with a fine,
uniform mesh; the fabric is woven in the gum and has a
high number of threads per inch. The standard width is
40 inches. Fine mesh cotton muslin is also employed.
For a time, filament yarn of Vinyon, a copolymer of
vinyl acetate and vinyl chloride was used, but when
production of this yarn ceased, other synthetic yarns
were used. Uses: sifting flour in flour mills and
screen printing. Sometimes called banderoles.
Under our prior tariff, The Tariff Schedules of the United
States, bolting cloth was classified under items 357.25 through
357.35. The scope of that provision was discussed in the
Summaries of Trade and Tariff Information, Schedule 3, Volume 4
(1969):
This summary covers woven fabrics known in commerce as
bolting cloths, including woven fabrics chiefly used
for stenciling purposes in screen-process printing,
wholly of silk, wholly of manmade fibers, or wholly of
silk and manmade fibers. For tariff purposes, cloths
chiefly used for stenciling purposes in screen-process
printing are provided for separately.
The fabrics used for both bolting cloths and stencil
fabrics are strong, fine, leno- or plain-woven gauze
fabrics, made of the best quality silk and manmade
fiber yarns specially thrown to insure uniform size.
The weaving is done, on both hand and power looms, with
the utmost care so as to produce a fabric with the
meshes identical in size...Silk bolting cloth is used
mainly for dry milling (especially of flour), is
generally leno-woven, and is of two types -- regular
and grit gauze. Each type is made in several weights
and in a wide range of mesh counts...Bolting cloths of
manmade fiber, usually of nylon and plainwoven, are
heat set after weaving and generally used in wet
sifting operations such as in starch manufacture.
Bolting cloths are necessary for flour milling and many
other industrial sieving operations, particularly for
abrasives and chemicals, and for drugs, pigments, salt,
sugar, spices, metal powders, explosives, and other
pulverized materials. These fabrics are also used for
other purposes, such as in the fabrication of wigs and
toupees.
The earlier sources indicate that the terms "bolting" and
"bolting cloth" have been traditionally associated with dry
sifting and sieving operations for the flour or meal industry.
The geometrically uniform openings which characterize bolting
cloth are used to separate coarse from fine particles. Bolting
cloths were historically composed of linen, silk or hair cloth.
However, the later reference materials indicate that bolting
cloth is now put to a variety of different applications, first in
screen-printing and ultimately for such diverse purposes as
industrial sieving operations for abrasives and chemicals, drugs
and other pulverized materials, as well as wet sifting operations
such as starch manufacture. The potential uses for bolting cloth
appear to be open-ended.
As the number of uses for this material has expanded, it has
become more important to identify its physical attributes.
Bolting cloth is generally a fine woven fabric comprised of a
leno or plain weave. Constant uniformity of mesh size continues
to be its defining characteristic. The weave must be firm and
strong in order to prevent slipping and displacement of the
filling yarn. Bolting cloth may now be composed of any number of
man-made fibers in addition to natural fibers.
The EN to heading 5911 define bolting cloth in a manner
consistent with the foregoing description:
Bolting cloths. These are porous fabrics (for example,
with a gauze, leno or plain weave), geometrically
accurate as to size and shape (usually square) of the
meshes, which must not be deformed by use. They are
mainly used for sifting (e.g., flour, abrasive powders,
powdered plastics, cattle food), filtering or for
screen printing. Bolting cloths are generally made of
hard twisted undischarged silk yarn or of synthetic
filament yarn.
This passage restates the proposition that bolting cloths are
generally used for sifting and screen printing operations.
However, it also provides that bolting cloth may be used for
certain unidentified "filtering" purposes. We interpret this
general statement to be a recognition that new uses for bolting
cloth may arise over the course of time.
The EN also set forth several physical characteristics which
are associated with bolting cloth. The term "porous" refers to a
fine leno or plain woven fabric. The EN reiterate that bolting
cloth must possess geometrically uniform mesh openings. The fact
that this cloth must not be "deformed by use" is an indication
that the weave of the fabric must be set so as to retain a
consistent mesh size and shape. Finally, the EN confirm the fact
that bolting cloth may be of synthetic filament yarn as well as
such natural yarns as silk.
In this instance, the merchandise features the physical
characteristics of bolting cloth. Protestant has indicated that
the filter material is used to separate impurities from blood
without removing the red blood cells. It is of critical
importance that the mesh openings be geometrically uniform in
order to insure that the cells are retained, while only smaller
particles are filtered off. The material is composed of rigid
polyester filaments and possesses the uniform mesh normally found
in bolting cloth.
Although the filter cloth is for use in blood purification,
which is a use not normally associated with bolting cloth,
protestant states that this material is in fact principally used
for more traditional sifting purposes. Blood purification merely
represents a new application for a pre-existing product. As
stated above, the EN to heading 5911 provides that bolting cloth
may be used for unspecified "filtering" purposes. We interpret
this language to mean that the scope of the bolting cloth
provision shall not be limited to its more traditional uses.
Hence, we conclude that the instant material is described by the
bolting cloth provision.
Straining Cloth
Subheading 5911.40, HTSUSA, provides for "straining cloth of
a kind used in oil presses or the like, including that of human
hair." The term "straining cloth" does not have the historical
significance which is associated with the term "bolting cloth."
The EN to heading 5911 provide:
Straining cloth (e.g., woven filter fabrics an (sic)
needled filter fabrics), whether or not impregnated, of
a kind used in oil presses or for similar filtering
purposes (e.g., in sugar refineries or breweries) and
for gas cleaning or similar technical applications in
industrial dust collecting systems. The heading
includes oil filtering cloth, certain thick heavy
fabrics of wool or of other animal hair, and certain
unbleached fabrics of synthetic fibres (e.g. nylon)
thinner than the foregoing but of a close weave and
having a characteristic rigidity. It also includes
similar straining cloth of human hair.
Although subheading 5911.40 provides for straining cloth
which is limited to those used in oil presses or the like, we
have determined that it encompasses a broad array of filtering
materials. In Headquarters Ruling Letter (HRL) 950284, dated
March 19, 1992, we stated that:
A careful reading of the language used in subheading
5911.40, HTSUSA, reveals that there is no requirement
that the straining cloths in this provision be used in
oil presses; rather, the term "or the like" is used
which serves to broaden the types of straining clothes
that are properly classifiable here.
Citing the EN to heading 5911 regarding the straining cloth
provision, we went on to say:
...EN(A)(3) to heading 5911, HTSUSA, enumerates several
examples of types of industrial filtering which utilize
straining cloths (e.g., oil presses, sugar refineries,
breweries). There is no fundamental difference in the
filtering function of the instant merchandise as
compared with those enumerated. Any straining or
filtering cloth classifiable in subheading
5911.40.0000, HTSUSA, is designed to separate solid
matter from fluid and is for a technical use.
This passage stands generally for the proposition that filtering
cloth designed to separate solid matter from fluid and is for a
technical use is prima facie classifiable under the straining
cloth provision of heading 5911. We see no need to modify this
observation. However, as the bolting cloth provision appears to
describe a specific type of filtering cloth, it is necessary to
more clearly delineate the scope of the straining cloth
provision.
The EN indicate that straining cloth is used in "oil presses
or the like." An oil press is more commonly known as a filter
press. The most common variety of this equipment is the plate
and frame filter press. A plate and frame press has been
described generally as follows:
Wellington Sears Handbook of Industrial Textiles
(1963): Plate and Frame Press. This is an early type
of pressure filter still widely used. It consists of a
series of vertically positioned alternate plates and
frames arranged in a horizontal holder. The plates are
covered with the filter cloth and the assembly is
closed tightly by means of hydraulic pressure. Thus
chambers are formed into which the liquid to be
filtered is pumped. The cloth acts as a gasketing
material for each plate, and also is a support for the
cake. In this type of filter the gasketing is an
important consideration, and relatively heavy fabrics
with good mechanical characteristics are required.
The standard plate and frame press is an open delivery
type, with each plate delivering its filtrate to an
outside trough. After completion of the filter cycle,
the press is opened and the filter cakes are scraped
from the cloths manually.
Encyclopedia of Chemical Technology: The plate-and-
frame filter press is probably the cheapest per unit of
filtering surface and requires the least floor
space...It has a high recovery of solids, and the solid
in the form of a cake may be readily handled in a tray
or shelf dryer, which is frequently used for valuable
products.
There is a great variety of filter presses employing
plates and frames. The simplest type has a single
conduit for introducing slurry and wash water, and a
single opening in each plate for removal of the liquid
(open delivery)...
* * *
The feed slurry enters through the conduit formed by
holes in the upper right corner of both the plates and
frames. Each frame carries an inlet or hold leading
from this conduit to the space between the plates.
Pressure on the slurry...causes the filtrate to pass
through the cloths on either side of the plates and run
through the space between the cloth and the plate
toward the outlet...
The solids in the slurry accumulate on the cloths on
opposite sides of the plate. After due time only a
small part of the space between the plates is available
for the slurry, and the feed is shut off. If the cake
is to be washed, clear washing fluid is then passed
into the inlet, enters the cake from the center of the
frame, and passes toward the plates on either side.
After the cake has been washed, this flow is stopped,
the force holding the plates together is released, the
plates and frames are opened in sequence, and the cake
is removed or dumped into a pit below the press. After
dumping is completed, the press is again closed by
applying the mechanical force to lock the plates and
frames together, and a new cycle of filtration begins.
A plate and frame filter press (i.e. oil press) is a
specific liquid/solid pressure filtration apparatus. However,
the straining cloth provision states that it encompasses
straining cloth for oil presses "and the like." The applicable
EN indicate that straining cloth includes filter cloth used in
sugar refineries or breweries and for gas cleaning or similar
technical applications in industrial dust collecting systems.
Therefore, the subheading for straining cloth is not limited to
filter cloth used in oil presses. From this fact we conclude
that this provision encompasses filter cloths with certain common
characteristics as those used in oil presses.
The references referred to above indicate that oil presses
are designed to maximize the surface area of the filter cloth
through which the slurry is forced. The filter cloth is
relatively heavy and thick in relation to bolting cloth. For
this reason, it is generally more durable than bolting cloth.
There appears to be no requirement that the filter cloth possess
exact and uniform openings. Cloths which are relatively thick
and heavy and which possess variable pore openings will capture a
high volume of solids of variable size.
The EN reinforce this interpretation as they indicate that
the provision encompasses heavy fabrics of wool which possess a
characteristic rigidity. It also lists a close weave as a
property characteristic of straining cloth, which may be
contrasted to the fine woven uniform mesh weave normally found in
bolting cloths. Finally, the EN list a variety of fabrics
embraced by the straining cloth classification, including woven
filter fabrics, needled filter fabrics, fabrics of wool or of
other animal or human hair. From these observations we conclude
that the straining cloth provision provides for most, if not all,
of the filter fabrics for technical purposes not described by the
bolting cloth provision.
Filter fabrics which have been classified under the
straining cloth provision have exhibited the characteristics set
forth above. In HRL 950284, dated March 19, 1992, and HRL
953056, dated June 16, 1993, we classified certain woven filter
belting used in sludge dewatering water purification processes as
straining cloth. In those decisions, the material was a thick
and relatively heavy single ply fabric featuring a close weave.
Moreover, HRL 089200, dated April 15, 1992, was concerned with
similar filter cloths designed to be incorporated into a filter
press (i.e. oil press). Finally, in HRL 084821, dated June 21,
1989, we classified a needleloomed fiber fabric as a straining
cloth. Needled filter fabrics are listed in the EN to heading
5911 as an example of a straining cloth.
In this instance, the filter fabric does not exhibit the
characteristics set forth for straining cloth in the EN. It is a
thin and lightweight material not normally associated with
straining cloth of heading 5911. It possesses a fine mesh weave,
as opposed to a close weave. This material has been designed to
retain particles of a certain size, while filtering out smaller
particles. On the other hand, straining cloth may have variable
pore openings to capture particles of many sizes. In light of
these observations, we conclude that the instant material will
not be put to the same uses as those set forth above.
Accordingly, this merchandise is not classifiable as straining
cloth of heading 5911.
HOLDING:
Therefore, based on the foregoing discussion, this protest
should be granted in full. The subject material is classifiable
under subheading 5911.20.3000, HTSUSA, which provides for textile
products and articles, for technical uses, specified in note 7 to
this chapter: bolting cloth, whether or not made up: other,
other. The applicable rate of duty is 6.5 percent ad valorem.
The textile category is 229. 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.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Lexis, Freedom of
Information Act and other public access channels.
Sincerely,
John A. Durant, Director