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.


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.


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?


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.


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.


John Durant, Director