CLA-2 RR:CR:TE 961537 RH
Port Director
U.S. Customs
610 South Canal Street
Chicago, IL 60607
RE: Protest Number 3901-97-101415; Mesh Fabric; Technical Use;
Bolting Cloth
Dear Sir:
This is in reply to your memorandum of March 19, 1998, forwarding the Application for Further Review of Protest (AFR) number 3901-97-101415 to our office for a decision.
The law firm of Rode & Qualey timely filed the AFR on behalf of Berhringer Mannheim Corporation, challenging Customs classification of woven polyester mesh fabrics as woven fabrics under subheading 5407.61.9905 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).
Review of the AFR is warranted pursuant to 19 CFR §§174.24 and 174.25.
FACTS:
The protestant filed ten entries between August 5, 1996, and February 27, 1997, and classified the subject mesh fabrics as other articles of plastic under subheading 3926.90.9890, HTSUSA.
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On March 19, 1997, Customs issued a Notice of Action advising the protestant that the subject merchandise would be classified as woven fabric under subheading 5407.61.9905, HTSUSA. Liquidation of all ten entries occurred on April 4, 1997.
The protestant now claims that the merchandise is classifiable under subheading 5911.20.3000, HTSUSA, as other bolting cloth.
The mesh woven fabrics at issue are used by the protestant in the manufacture of test strips for its client's Accu-Chek® Advantage™ portable blood glucose monitoring system. The system is composed of a monitor unit and disposable test strips.
Counsel describes the fabrics as follows:
Made from 100 percent polyester synthetic filament yarn, these fabrics are porous, i.e., they are woven with 5,184 geometrically accurate interior mesh openings per square inch; visual examination indicates the filaments are bonded where they cross each other to prevent deformation of the square openings by use. The fabrics are coated with an anionic surface-active agent, dioctyl dosium sulfosuccinate, prior to importation; this coating acts as a wetting agent, i.e., it reduces the surface tension of the liquid samples which are applied to the fabrics when they are used as described below. The coating is not visible to the naked eye. The coated fabrics are imported in rolls that are, typically, 437 meters in length and 178 mm in width.
After importation, the mesh fabrics are cut to size, which is approximately 1/4th inch square and incorporated into a test strip. Each test strip is composed of a thin rectangular white plastic strip base which incorporates two parallel metal electrodes plus a recessed reagent "window", and a rectangular red strip cover with a small opening near the center. The red "border" defines the "target area" after the cover is attached to the top of the test strip. Each mesh piece is positioned on a ledge within the reagent window of the test strip base where it is retained by the red strip cover.
The exposed portion of the mesh fabric covers the open recess in the test strip base within which the reagents were applied and dried in an earlier stage of manufacture. A drop of blood being tested is applied in a measured amount to the mesh, using the lancet supplied with the kit.
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The purpose of the mesh fabric is to obtain an even distribution of a blood sample over the surface of the test strip and to protect the reagents. The surfactant on the mesh reduces surface tension. The glucose in the blood reacts with the reagents producing electrons in a chemical reaction, which are stored in the ferocyandie contained in the reagents. When the test strip is inserted in the test monitor an electric current is applied to the two electrodes in the strip, releasing stored electrons. It is this current that is measured, giving an indication of the amount of glucose in the blood. The fabric plays no part in the actual testing of the blood.
ISSUE:
Is the fabric classifiable under heading 5407, HTSUSA, as a woven polyester mesh fabric, or under heading 5911, HTSUSA, as a textile product for technical use?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI's will be applied, in the order of their appearance.
Additionally, the Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System constitute the official interpretation of the scope and content of the nomenclature at the international level. They represent the considered views of classification experts of the Harmonized System Committee. While not treated as dispositive, the EN are to be given considerable weight in Customs interpretation of the HTSUSA. It has, therefore, been the practice of the Customs Service to consult the terms of the EN when interpreting the HTSUSA.
Counsel concedes that the fabrics in question are woven fabric of synthetic filament yarn described in heading 5407, but he claims that they are also textile products and articles for technical uses in heading 5911. Citing United States v. Henry & Bros, 44 CCPA 48, CAD 636 (1957), counsel submits that use provisions prevail over general provisions and that under the principles of GRI 3(a), heading 5911 provides a more specific description of the instant fabrics.
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Moreover, counsel claims that the fabrics in question are excluded from classification within heading 5407, by Note 8(b), Section XI, HTSUSA, which states, in part, that "Chapters 50 to 55 and 60 do not apply to goods of chapter 56 to 59", and by the EN to heading 5407, which reads, in part, that the heading does not include "[w]oven fabrics for technical uses, of heading 59.11."
Thus, we must first determine whether the fabrics in question are classifiable under heading 5911. If so, we agree with counsel that they are excluded from classification within heading 5407.
Note 7 to Section XI, HTSUSA, reads in relevant part:
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 other technical purposes, including narrow fabrics made of velvet impregnated with rubber, for covering weaving spindles (weaving beams);
Bolting cloth;
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The term "for technical uses" is not defined in the section or chapter notes, but the EN provide guidance as to the scope of that phrase. The EN to heading 5911 read, in part:
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.
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We agree with counsel that the fabric in question is "for technical use" in the Accu-Chek® Advantage™ portable blood glucose monitoring system. Its intended purpose is to obtain an even distribution of a blood sample over the surface of the test strip to ensure precise and accurate measurement of the blood glucose level. Moreover, the fabric, in its imported condition, is coated with dioctyl dosium sulfosuccinate, which acts as a wetting agent to reduce the surface tension of the liquid samples.
More specifically, counsel cites United States v. Aronaghanian, 27 C.C.P.A. 170, C.A.D. 81 (1939), and part (A)(2) to the EN to heading 5911, to support his claim that the fabric is classifiable at the subheading level (5911.20) as bolting cloth. Part (A)(2) to the EN to heading 5911 reads:
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.
The court in Aronaghanian found that although the terms "bolting" and "bolt" may be most frequently applied in the milling art, the common meaning of the terms is broad enough to cover the sifting or separating of materials other than those produced by the milling art, and that such cloth has acquired important uses in the textile printing and in the sign painter's art. The court cited the Webster's New International Dictionary (1932):
Bolt. 1. To sift or separate the courser from the finer particles of, as bran from flour, by means of a bolter; to separate, assort, refine, or purify by other means.
While counsel acknowledges that the fabric is not used for “sifting" or "filtering" he claims that they are suitable for such purposes. Moreover, counsel analogizes the use of the imported fabrics with bolting cloths used for screen printing, i.e., the blood sample used in the Accu-Chek® Advantage™ monitoring system, like dyes, paints and pigments in the screen printing process, is distributed over the surface of the mesh opening to form a covering on the surface of the fabric.
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Finally, counsel cites HQ 950733, dated December 28, 1993, in which Customs held that filter cloth used in blood purification, which is not normally associated with bolting cloth, was nevertheless classified under subheading 5911.20.3000, HTSUSA.
We disagree with counsel that the fabric is bolting cloth. As pointed out in the EN, bolting cloth is mainly used for sifting, filtering or screen printing. Fabrics used for these purposes are not coated. Furthermore, the ruling cited by counsel is not persuasive. Unlike the filter cloth in the instant case, the principal use of the fabric in HQ 950733 was for filtering (blood purification), and it was not coated.
The EN to heading 5911 state under part (A)(1) that textile fabrics of that heading include:
Textile fabrics, felt and felt-lined woven fabrics, coated, covered or laminated with rubber or other material (e.g., plastics), of a kind used for card clothing, and similar fabrics or a kind used for other technical purposes, including narrow fabrics made of velvet impregnated with rubber, for covering weaving spindles (weaving beams). Bold supplied.
The mesh fabric in question is coated with "other material", i.e., dioctyl dosium sulfosuccinate and, as we have already established, is used for technical purposes in a portable glucose monitoring machine. Accordingly, we find that the fabric is properly classified under subheading 5911.10.2000, HTSUSA.
HOLDING:
The protest should be DENIED in full. The merchandise at issue should be reliquidated under subheading 5911.10.2000, HTSUSA, for the reasons set forth above.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
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Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division