CLA-2 RR:CR:GC 960863 HMC
Port Director of Customs
196 West Service Rd.
Champlain, NY 12919
RE: Protest 0712-97-100872; Flooring Felt; Subheading
6815.99.40; Explanatory Note (VIII) to GRI 3(b); Articles of
other mineral substances not elsewhere specified or included;
Dear Port Director:
This is our decision on Protest 0712-97-100872, filed
against your classification of a non asbestos mineral flooring
felt. The 1997 entries under protest were liquidated on May 9,
1997, and this protest timely filed on August 6, 1997.
The merchandise under protest is a non asbestos flooring
felt made of 17% cellulose fiber, 67.55% mineral filler, 12.5%
styrene butadiene latex, 1.5% acrylic latex, and 1.25% paper
machine additives. The mineral filler is itself made of 45% talc
and 22% calcium carbonate. The Customs Office of Laboratory and
Scientific Services in Chicago, Illinois, performed an analysis
on a flooring felt sample (laboratory report 3-98-10012-001,
dated December 30, 1997) finding that the "sample, a gray white
sheet goods measuring 0.51 millimeter thick, [was] composed
principally of the minerals talc and calcite, with cellulose and
styrene-butadiene rubber as binders. The analysis is
substantially in agreement with the information supplied by the
The merchandise was entered under a provision for other
articles of other mineral substances under subheading 6815.99.40
of the Harmonized Tariff Schedule of the United States (HTSUS).
However, protestant claims that the merchandise is classifiable
as other articles of talc under subheading 6815.99.20, HTSUS.
The entries were liquidated under subheading 6815.99.40, HTSUS.
The 1997 HTSUS provisions under consideration are as
6815 Articles of stone or of other mineral
substances (including carbon fibers, articles
of carbon fibers and articles of peat), not
elsewhere specified or included:
6815.99.20 Talc, steatite and
soapstone, cut or sawed,
or in blanks, crayons,
cubes, disks or other
6815.99.40 Other...0.4% (CA)
Whether the flooring felt has the essential character of
other articles of talc classifiable under subheading 6815.99.20,
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance
with the General Rules of Interpretation (GRIs). GRI 1 states in
part that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6. GRI 6 states
that the classification of goods in the subheadings of a heading
shall be determined according to the terms of those subheadings
and any related subheading notes and, mutatis mutandis, to the
above rules, on the understanding that only subheadings at the
same level are comparable. For the purposes of this rule, the
relative section, chapter and subchapter notes also apply, unless
the context otherwise requires.
There is no dispute that the flooring felt is described by
heading 6815, HTSUS, and that the classification at the
subheading level depends on the composition of the mineral
filler. Protestant states that the mineral filler is made of 45%
talc and 22% calcium carbonate, which was confirmed by the
Customs Office of Laboratory and Scientific Services.
Accordingly, we must determine whether the merchandise is
classifiable as talc under subheading 6815.99.20, or as other
mineral substances under subheading 6815.99.40, HTSUS.
Protestant contends that the product is classifiable under
subheading 6815.99.20 and not 6815.99.40 because the talc imparts
the essential character to the flooring felt. Pursuant to GRI 6,
GRI 3(a) states that when, by application of rule 2(b) or for any
other reason, goods are, prima facie, classifiable under two or
more subheadings, the subheading which provides the most specific
description shall be preferred to subheadings providing a more
general description. However, when two or more subheadings each
refer to part only of the materials or substances contained in
mixed or composite goods or to part only of the items in a set
put up for retail sale, those subheadings are to be regarded as
equally specific in relation to those goods, even if one of them
gives a more complete or precise description of the goods. We
find that, since the flooring felt is made of at least two
different chemical compounds, it meets the above conditions and,
by application of GRI 3(b), it is classified according to the
component that gives the good its essential character.
The Harmonized Commodity Description And Coding System
Explanatory Notes (EN's) constitute the official interpretation
of the Harmonized System. While not legally binding on the
contracting parties, and therefore not dispositive, the EN's
provide a commentary on the scope of each heading of the
Harmonized System and are thus useful in ascertaining the
classification of merchandise under the System. Customs believes
the EN's should always be consulted. See T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (Aug. 23, 1989).
In general, essential character has been construed to mean
that attribute which strongly marks or serves to distinguish what
an article is; that which is indispensable to the structure, core
or condition of the article. Explanatory Note (VIII) to GRI
3(b), at page 4, states that the factor which determines
essential character will vary as between different kinds of
goods. It may, for example, be determined by the nature of the
material or component, its bulk, quantity, weight or value, or by
the role of a constituent material in relation to the use of the
It is Customs view that the talc imparts the essential
character to the flooring felt. In HQ 957093, dated May 22,
1995, Customs held that talc imparted the essential character to
a vinyl floor backing made of cellulose fibers, water, glass
fibers, binder (styrene butadiene rubber) processing agents, talc
and kaolin because the talc predominated by weight over the rest
of the components. Similarly, in this case, we find that the
talc predominates by weight over any other mineral component.
Accordingly, the flooring felt is classifiable as if only
consisting of talc under subheading 6815.99.20, HTSUS.
Under the authority of GRI 3(b), the non asbestos mineral
flooring felt is classifiable under subheading 6815.99.20, HTSUS,
as other articles of other mineral substances: other: talc. The
1997 rate of duty is free.
This protest should be GRANTED. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, you should 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.
Sixty days from the date of the decision, the Office of
Regulations and Rulings will take steps to make the decision
available to Customs personnel via the Customs Rulings Module in
ACS and to the public via the Diskette Subscription Service, the
Freedom of Information Act and other public access channels.
John Durant, Director
Commercial Rulings Division