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HQ 967326




December 13, 2004

CLA-2 RR:CR:TE 967326 KSH

TARIFF NO.: 5911.40.0000

Robert L. Eisen, Esq.
Amy J. Johannesen, Esq.
Coudert Brothers
1114 Avenue of the Americas
New York, New York 10036-7703

RE: Classification of non-woven material used in milk strainers

Dear Mr. Eisen and Ms. Johannesen:

This is in reply to your letter dated August 2, 2004, on behalf of your client, Ahlstrom Mount Holly Springs LLC, in which you requested a ruling regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of non-woven filtration material used in milk strainers. Your request for classification was forwarded to Customs and Border Protection (CBP) Headquarters and upon review by the Office of Regulations and Rulings, the subject merchandise is classified in heading 5911, HTSUSA, for the reasons set forth below.

Five samples were submitted to this office for examination and were considered in conjunction with your request. This office also considered the information contained in your submission of May 13, 2004. Additionally, a meeting with you was held on December 1, 2004.

FACTS:

The merchandise at issue is described as “non-woven filtration media composed of a polyester blend (with cellulose and viscose fibers) with an acrylate binding agent, which is designed for straining milk and is used in milk strainers, filter funnels, and in the vessels and tanks in the milking industry. It is specifically designed for food contact.” Three of the samples are manufactured by a wet laid process and two of the samples are made by a paper making process with a final wood pulp content of 13%. The merchandise is imported into the U.S. in rolls and is subsequently cut and in some cases sewn into one of two shapes. The first shape is round and is inserted as a cross section of a pipe through which milk flows to the milk storage vessel. The second shape is cut and sewn into the shape of a long, slightly tapered funnel which strains the milk as it flows to the storage tank through the pipes.

ISSUE:

Whether the non-woven filtration material is classified in heading 5911, HTSUSA, or in heading 5603, HTSUSA.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

It is your position that the non-woven filtration material is classified in heading 5603, HTSUSA, which provides for “[n]onwovens, whether or not impregnated, coated, covered or laminated.”

The EN to heading 5603 provide in pertinent part that:

Except where they are covered more specifically by other headings in the Nomenclature, the heading covers nonwovens in the piece, cut to length or simply cut to rectangular (including square) shape from larger pieces without other working, whether or not presented folded or put up in packings (e.g., for retail sale). These include: facing webs (overlay) for incorporation in laminated plastics; top-sheets for the manufacture of disposable baby napkins (diapers) or sanitary towels; fabrics for the manufacture of protective clothing or garment linings; sheets for filtering liquids or air, for use as stuffing materials, for sound insulation, for filtration or separation in road building or other civil engineering works; substrates for manufacturing bituminous roofing fabrics; primary or secondary backing for tufted carpets, etc..

Additionally, the EN for heading 5603 lists exclusions which include, among other goods, "Nonwovens for technical uses, of heading 59.11."

Accordingly, the non-woven filtration material must be excluded from classification in heading 5911, HTSUSA, before considering whether classification is appropriate in heading 5603, 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 card clothing, and similar fabrics 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;

(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 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, washers, polishing discs and other machinery parts).

In order for a fabric to be classified in heading 5911, HTSUSA, two prerequisites need be met: 1) the fabric must be for technical use; and 2) the fabric must be one of the fabrics enumerated in Note 7(a) (i) through (vi). There is no dispute that the relevant provision at issue is Note7(a)(iii).

Note 7(a)(iii) provides for "straining cloth of a kind used in oil presses or the like. The EN to heading 5911, HTSUSA, defines this phrase as follows:

Straining cloth (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.

The meaning of "straining cloth of a kind used in oil presses or the like" was explored by the Court in GKD-USA, Inc. v. United States, 931 F. Supp. 875 (1996). In GKD-USA, Inc., the Court of International Trade found that there is no clearly stated Congressional intent as to the meaning of the phrase "straining cloth" as used in the tariff schedule, and construed it in accordance with its current common and commercial meaning. Id. at 879-80. The Court determined that "straining cloth" is generally referred to as "filter cloth," being "fabric used as a medium for filtration." Id. at 880 (quoting McGraw-Hill Dictionary of Scientific and Technical Terms 715 (4th ed. 1989)). A medium for filtration "offers a single barrier in which the openings are smaller than the particles to be removed from the fluid." Id. at 880 (citation omitted). The Court also addressed whether the meaning of “straining cloth” is limited by the phrase “of a kind used in oil presses or the like.” The Court noted that in general terms an oil press is a form of “filter press” which can include plate presses or screw presses. Id. at 880-881.

Moreover, E.N. 5911(A)(3) lists straining cloth for gas cleaning or similar technical applications in industrial collecting systems.

You argue that oil presses and filters similar to them are classified in heading 8421, HTSUSA. You point out that the E.N. to heading 8421, HTSUSA, excludes milk strainers, vessels and tanks. Inasmuch as the non-woven filtration materials at issue are used in conjunction with milk strainers, storage tanks and their connecting funneling pipes, you contend that the merchandise is excluded from the tariff category in which “oil presses” are included. You also argue that the filtration materials are not for “technical use” and thus, are excluded from classification in heading 5911, HTSUS.

The Court in GKD-USA, supra, did not limit the term oil presses and the like to the examples of oil presses given therein. Rather the examples of press plates and screw presses were provided to illustrate the function of oil presses. In fact, the Court held that to be classified in subheading 5911.40.00, HTSUSA, the good must be a filter cloth used on a press designed to separate liquids from solids through a change in pressure. GKD-USA at 881. The Court did not limit filters by the types of presses in
which they were used but by the manner in which the separation of liquids from solids occurred. Moreover, we located at least one ruling in which a screw press was not classified in heading 8421, HTSUSA. See New York Ruling (NY) C85148, dated March 31, 1998.

Like the filter at issue in GKD-USA, the non-woven filtration material separates debris from the milk by virtue of a vacuum created by the milk pump that carries the milk from the receiver jar through the filter and into the bulk tank.

Further, CBP has a long history of administrative precedent classifying various types of filter materials, including non-woven filter material to be made into milking machine filters, as technical use fabrics under subheading 5911.40.0000, HTSUSA. See NY H89288, dated April 8, 2002, NY 818399, dated February 8, 1996, NY D85467, dated December 14, 1998, HQ 950284, dated March 19, 1992, NY E89840, dated November 9, 1999 and HQ 965659, dated August 27, 2002.

Accordingly, the non-woven filtration material is classified in subheading 5911.40.0000, HTSUSA, which provides for straining cloth of a kind used in oil presses or the like.

HOLDING:

The non-woven filtration material is classified in 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 general column one rate of duty is 8 percent ad valorem.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact the local CBP office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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