CLA-2 CO:R:C:T 089200 HP

Mr. John V. Linde
District Director
U.S. Customs Service
Thomas P. O'Neill, Jr. Federal Building
10 Causeway Street
Boston, MA 02222-1059

RE: Request for further review of protest no. 0401-90-000305. Filter cloth; straining cloth; bolting cloth; technical

Dear Mr. Linde:

This is in response to your memorandum of June 19, 1990, requesting further review of protest no. 0401-90-000305.

FACTS:

The merchandise at issue consists of woven filter cloths produced in Germany, imported in material lengths, and not containing any lines of demarcation. The textile material, after importation, is cut to size to make filters for use in filter presses in batch filtration units. The applications are in water filtration, sewerage and chemical treatment, and a variety of food and beverage processing equipment. Each material or quality is designed or tailored for specific filtration requirements. The material will be cut and mounted on plates or frames, which are then incorporated in the filter press.

Filtration characteristics required for a particular filter press must be determined prior to the submission of the purchase order and manufacture of the filter press cloth. In fabricating the filter press cloth, nine design parameters or variables are adjusted in accordance with the filtration requirements of the customer:

1.Weight; 2.Permeability; 3.Yarn; 4.Fiber; 5.Count (warp & weft); 6.Weave; 7.Treatment; 8.Mix; and 9.Finish.

At conference, counsel informed us that the samples included with the Protest documentation was not representative of the fabrics described on the entry documents. In counsel's follow-up correspondence of September 23, 1991, samples of four of the five different fabrics entered were enclosed. Specifically:

F254 F206 F250 F255

Style #814 Style #807 Style #810 Style #821

Polypropylene Polypropylene Polypropylene Polypropylene

Weight: Weight: Weight: Weight: 16.0 18.0 oz/yd 8.70 oz/yd 18.1 oz/yd oz/yd squared squared squared squared

Weave: X Weave: Weave: 3/1 Weave: X Twill Twill Satin Double

CFM: 1.0 @ CFM: 5-7 @ CFM: 1.0 @ 1.5 @ 1/2" 1/2" w.g. 1/2" w.g. 1/2" w.g. w.g.

The Office of Laboratories & Scientific Services has informed us that all have multiple warp and/or fillings. Additionally, counsel stated that

Style No CD 221 is no longer utilized by [Importer] and a sample is not available. I am advised by my client that CD 221 was of a plain weave and thus is dissimilar in construction to the four above- referenced fabrics. Accordingly, we would admit that fabric style CD 221 is classifiable as straining cloth.

ISSUE:

Whether the filter cloths are considered bolting cloths, straining cloths, or other textile technical products under the HTSUSA?

LAW AND ANALYSIS:

Heading 5911, HTSUSA, provides for textile products and articles for technical uses. The General Rules of Interpretation (GRIs) to the HTSUSA govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part, that "...classification shall be determined according to the terms of the headings and any relative section or chapter notes...." Goods which cannot be classified in accordance with GRI 1 are to be classified in accordance with subsequent GRIs, taken in order. Note 7 to Chapter 59, HTSUSA, provides:

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, impreg- nated 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, polishing discs and other machinery parts).

Importer attempted to enter the merchandise at issue as a bolting cloth; alternatively, counsel now states that classification as an "other" would be acceptable. Customs disagreed, appraising this merchandise as a straining cloth.

Bolting Cloth

The Explanatory Notes (EN) to the HTSUSA constitute the official interpretation of the tariff at the international level. While not legally binding, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the Explanatory Notes when interpreting the HTSUSA. The EN to heading 5911, HTSUSA, defines "bolting cloths" as:

... 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. [Emphasis added].

Wingate, Dr. Isabel B., Fairchild's Dictionary of Textiles (6TH ed.) (Fairchild 1979) [hereinafter Fairchild's], at 237, defines "filter cloth" as:

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 such as nylon, acrylic, vinyl, polyethylene and others as well as glass fibers are very useful as industrial filtering cloths because of their resistance to the action of many chemicals.

Counsel claims that the above-emphasized language from the Explanatory Note encompasses the filtering fabric at issue. We disagree. By employing the language "the following only" in Note 7 to Chapter 59, HTSUSA, the drafters of the HTS made it clear that only certain types of technical products were to be classified within each subheading of heading 5911, HTSUSA. We note with particular interest that more than one "filter cloth" is specifically provided for within the heading. We therefore reject any argument that broad language such as "porous fabrics ... mainly used for ... filtering" specifically incorporates this merchandise within the breakout for "bolting cloth." See also Fairchild's, supra, at 71 (recognizing that primary uses of bolting cloths are sifting flour and screen printing).

Straining Cloth vs. "Other" Technical Cloth

McGraw-Hill Encyclopedia of Science & Technology (McGraw- Hill 1987) describes "filtration."

[Filtration is t]he separation of solid particles from a fluid-solids suspension of which they are part of by passage of most of the fluid through a septum or membrane that maintains most of the solids on or within itself. The septum is called a filter medium, and the equipment assembly that holds the medium and provides space for the accumulated solids is called a filter. The fluid may be a gas or a liquid. The solid particles may be coarse or very fine, and their concentration in the suspension may be extremely low (a few parts per million) or quite high (>50%).

The object of filtration may be to purify the fluid by clarification or to recover clean, fluid-free particles, or both.

* * *

Liquid filtration. Liquid-solids separations are important in the manufacture of chemicals, polymer products, medicinals, beverages, and foods; in mineral processing; in water purification; in sewage disposal; in the chemistry laboratory; and in the operation of machines such as internal combustion engines. Filtration is the most versatile and widely used operation for such applications. In some cases, however, gravity or centrifugal sedimentation is preferred to filtration. [Citations omitted.]

Liquid filters are of two major classes, cake filters and clarifying filters. The former are so called because they separate slurries carrying relatively large amounts of solids. They build up on the filter medium as a visible, removable cake which is normally discharged "dry" (that is, as a mass), frequently after being washed in the filter. It is on the surface of this cake that filtration takes place after the first layer is formed on the medium. The feed to the cake filter normally contains at least 1% solids.

* * *

Cake filters. There are three classes of cake filters, depending on the driving force producing the separation. In pressure filters, superatmospheric pressure is applied by pump or compressed gas to the feed slurry and filtrate is discharged at atmospheric pressure, or higher.

* * *

Cake filters are also classified as batch-operating or continuous. In general, pressure filters are batch or intermittent.

Pressure filters. There are three principal industrial classes of pressure filters: filter presses.... Filter presses are the simplest and most versatile pressure filters. One form, the plate-and- frame press, ... consists of a number of rectangular or circular vertical plates, alternating with empty frames, assembled on horizontal rails. * * * The medium consists of filter cloths [(the merchandise at issue)] hung over the plates and covering all filter areas. * * * Filtrate collects on the plate surfaces and leaves the press through drainage channels.

The EN to heading 5911, HTSUSA, describes "straining cloths" as:

... (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.

Counsel claims that Customs classification of this merchandise as a straining cloth is incorrect, since straining cloth is generally utilized for depth filtration - as a gross cloth in an elementary filtration system. In contrast, counsel argues, the instant merchandise is designed and manufactured as a "filter press cloth" to meet nine variable characteristics in accordance with the specific technical filtration requirements of the customer. Therefore, while still considered filtering cloths, the cloths at issue should not be classifiable as straining cloths. See Fairchild's, supra, stating that the general term filter cloths "vary in weave, weight, fiber, size of yarns and all other features."

We do not agree. In HRL 950284 of March 19, 1992, we classified a sludge filtering belt, stating:

This language [EN 5911] 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.

* * *

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 syn- onymous as evidenced by the common usage of the word "strain" and the identical functions of straining cloths and filtering cloths or belts. Webster's II 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 is a filtering cloth or belt. * * * 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. The subject merchandise is put to the same use as the straining cloth used in oil presses, sugar refineries and breweries and it is clearly used for technical purposes. Accordingly, classification of the subject merchandise is proper under subheading 5911.40.0000, HTSUSA, and we need not examine the merits of classifying the subject merchandise under the "other" breakout in heading 5911, HTSUSA.

HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 5911.40.0000, HTSUSA, as 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.

You are instructed to deny the protest in full. A copy of this decision should be attached to the Form 19 Notice of Action.

Sincerely,

John Durant, Director
Commercial Rulings Division