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HQ 950284


March 19, 1992

CLA-2 CO:R:C:T 950284 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 5911.40.0000

John P. Donohue
John B. Brew
Donohue and Donohue
421 Chestnut Street
Philadelphia, PA 19106

RE: Reconsideration of NYRL 862903 (5/16/91); affirmed; classification of sludge filtering belt imported in material lengths; subheading 5911.40.0000, HTSUSA; straining cloth of kind used in oil presses or the like synonymous with filtering belt used to filter sludge in dewatering process

Dear Messrs. Donohue and Brew:

On May 16, 1991, our New York office issued your client, Scandiafelt N.A., New York Ruling Letter (NYRL) 862903, classifying sludge filtering belts. This office has been asked to review that ruling with regard to the classification of the filtering belt imported in material lengths.

FACTS:

At issue is the classification of a sludge filtering belt made from woven polyester or nylon monofilaments. The belt will be imported in material lengths and is intended to be used on machines for the purpose of allowing sludge a period of free drainage through the use of pressure between filter cloths. The weight of this material is over 650 grams per square meter.

The importer states that the subject merchandise is an industrial textile belt primarily used for environmental control dewatering facilities.

New York Ruling Letter (NYRL) 862903, dated May 16, 1991, classified filtering belts, when imported endless or fitted with
linking devices, under subheading 5911.32.0090, HTSUSA. The same textile fabric, imported in material lengths, was classified under subheading 5911.40.0000, HTSUSA.

The importer's request for reconsideration concerns the classification of the fabric imported in material lengths and our reconsideration of NYRL 862903 is accordingly limited to this issue.

ISSUE:

Whether the sludge filtering belts that are imported in material lengths are classifiable under heading 5911, HTSUSA, as straining clothes of a kind used in oil presses or the like, or under this heading's residual provision for "other" textile products?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification will be determined by the terms of the headings, and any relative section or chapter notes.

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 EN when interpreting the HTSUSA.

Chapter 5911, HTSUSA, provides for textile products and articles for technical uses so long as they are specified in note 7 to Chapter 59. Note 7 to Chapter 59 reads:

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;

(ii) Bolting cloth;

(iii) Straining cloth of a kind used in oil presses or the like, of textile material or human hair; [emphasis added]

(iv) Flat woven textile fabric with multiple warp or weft, whether or not felted, impregnated or coated, of a kind used in machinery or 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 paper-making or similar machines (for example, for pulp or asbestos-cement), gaskets, polishing discs and other machinery parts).

There is no doubt that Note 7 to Chapter 59 provides for sludge filtering belts of textile material designed for technical purposes. Counsel has raised some question as to the appropriate classification of these articles within Chapter 59.

In your submission you state that NYRL 862903 was incorrect in its classification of the filtering belt imported in material lengths under subheading 5911.40.0000, HTSUSA, inasmuch as the product at issue has no use in industrial oil presses. You acknowledge that subheading 5911.32.0090, HTSUSA, is an inappropriate classification for this article because the Explanatory Notes (EN) to heading 5911, HTSUSA, require that products classifiable under this international subheading be "endless or fitted with linking devices"; this product is imported in material lengths and is therefore precluded from classification here. Counsel offers subheading 5911.90.0000, HTSUSA, the residual provision for textile products and articles for technical uses, as the most appropriate classification for this product.

It is Customs' determination, however, that the merchandise at issue is not precluded from subheading 5911.40.0000, HTSUSA, merely because it is not used in oil presses.

The language in the tariff schedule qualifies the types of straining clothes classifiable under subheading 5911.40.0000, HTSUSA, as those "of a kind used in oil presses or the like". To classify the subject merchandise under this provision, two issues must be resolved: 1) are "straining" cloths synonymous with "filtering" cloths or belts, and 2) is the subject merchandise of "the like" used in oil presses or in similar technical straining processes?

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.

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

... (e.g., woven filter fabrics and [sic] needled 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 fibers (e.g., nylon) thinner than the foregoing but of a close weave and having char- acteristic rigidity. It also includes similar straining cloth of human hair. [emphasis added]

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. Counsel's argument that the article at issue is precluded from classification under subheading 5911.40.0000, HTSUSA, because it is not used in oil presses, is therefore insufficient to bar classification under this provision.

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 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.

The question then arises as to whether this filtering or straining cloth is of a kind used in oil presses "or the like". Customs accepts the fact that the subject merchandise is not used in oil presses, but rather to dewater sludge in industrial and municipal treatment systems. 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. The subject merchandise is put to the same use as the straining cloths 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:

The subject merchandise is classifiable under subheading 5911.40.0000, HTSUSA, which provides for textile products and articles, for technical uses, specified in Note 7 to Chapter 59: straining cloth of a kind used in oil presses or the like, including that of human hair. The rate of duty is 17% ad valorem and there is no textile category applicable to the subject merchandise at this time.

Due to the changeable nature of the statistical annotation and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

NYRL 862903 is affirmed.

Sincerely,

John Durant, Director

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