# HQ 961537

November 21, 2000

CLA-2 RR:CR:TE 961537 RH

CATEGORY: Classification

TARIFF NO.: 5911.10.2000

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 1/4^th^ 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]{.underline}, 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);

(ii) Bolting cloth;

\* \* \* \* \*

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]{.underline}, 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]{.underline} 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)]{.underline}:

> 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