CLA-2 OT:RR:CTF:TCM H140746 HvB
Port Director
U.S. Customs and Border Protection
Port of Chicago
9915 Bryn Mawr Avenue Rosemont, IL 60018-5213
Attn.: Assistant Port Director – Trade
RE: Internal Advice 11/002; Tariff Classification of Dishwand Refill sponge; Abrasive Articles
Dear Port Director:
This ruling is in response to your memorandum, dated December 20, 2010, which forwarded a request for Internal Advice initiated by 3M Company (3M), dated September 8, 2010, regarding clarification on the classification of a sponge pad packaged as refill for soap-dispensing dishwands and two other sponges, under the Harmonized Tariff Schedule of the United States (HTSUS). This decision addresses the 483-12 dishwand refill. The 465 Scrub Sponge and the 8215-RF dishwand refill will be addressed under Headquarters Ruling Letter (HQ) H260180.
On January 24, 2013 and December 12, 2014, members of my staff met with representatives of 3M and its counsel. This decision takes into account the arguments 3M presented during those meetings.
FACTS:
The subject merchandise consists of the Scotch-Brite Dishwand Refill pad, which is identified as the “483-12 Refill Pad”. 3M submitted three samples of each of the subject good and these samples were sent to the U.S. Customs and Border Protection (“CBP”) Laboratory for testing. It is designed to be attached to a plastic soap-dispensing dishwand, and is to be used to clean dishes, pots, and other kitchen surfaces. It is cut into a teardrop shape. Classification of the plastic dishwand is not at issue.
The 483-12 refill pad is composed of three layers: a non-woven textile layer, polyurethane foam (cellular plastic) and a plastic “shoe” with a groove that allows the refill to fit into the dishwand. 3M submits that the non-woven textile layer of the 483-12 refill pad contains a polyvinyl chloride (“PVC”) which is mixed into a bonding resin and is applied to the surface textile layer, and that the PVC gives the refill its abrasive character. CBP Laboratory Report NY20112184, dated February 14, 2012, found that the textile layer of the 483-12 Refill “consists of potassium chloride and titanium dioxide as well as unidentified inorganic compounds of copper, silicon, and iron.” The CBP Laboratory did not find PVC in the sample, however, 3M submitted evidence demonstrating that PVC is present based on infrared microscopy. Accordingly, we concede that PVC is present.
ISSUE:
Whether the subject dishwand refill sponge pad is classified under the HTSUS as abrasive articles of heading 6805, HTSUS, or as a textile article under Section XI?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 GRIs may then be applied.
The HTSUS provisions under consideration are as follows:
5603 Nonwovens, whether or not impregnated, coated, covered or laminated:
Of man-made filaments:
5903 Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902
6307 Other made up articles, including dress patterns:
6307.10 Floorcloths, dishcloths, dusters and similar cleaning cloths:
***
6307.90 Other:
***
Other:
***
6307.90.98 Other
6805 Natural or artificial abrasive powder or grain, on a base of textile material, paper, of paperboard or of other materials, whether or not cut to shape or sewn or otherwise made up:
6805.10 On a base of woven textile fabric only
***
6805.30 On a base of other materials:
***
6805.30.50 Other
Section XI, HTSUS, which covers Chapters 59 and 56, provides in pertinent part:
This section does not cover:
***
(q) Abrasive-coated textile material (heading 6805) and also carbon fibers or articles of carbon fibers of heading 6815[.]
7. For the purposes of this section, the expression "made up" means:
(a) Cut otherwise than into squares or rectangles;
(b) Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other
working (for example, certain dusters, towels, tablecloths, scarf squares, blankets);
***
(f) Assembled by sewing, gumming or otherwise (other than piece goods consisting of two or more actual lengths of identical material joined end to end and piece goods composed of two or more textiles assembled in layers, whether or not padded)[.]
8. For the purposes of chapters 50 to 60:
(a) Chapters 50 to 55 and 60 and, except where the context otherwise requires, chapters 56 to 59, do not apply to goods made up within the meaning of note 7 above; and
(b) Chapters 50 to 55 and 60 do not apply to goods of chapters 56 to 59.
The Notes to Chapter 63, HTSUS, provides in pertinent part:
Sub-Chapter I applies only to made up articles, of any textile fabric.
Chapter 68, HTSUS, provides in pertinent part:
This chapter does not cover:
…
(c) Coated, impregnated or covered textile fabric of chapter 56 or 59 (for example, fabric coated or covered with mica powder, bituminized or asphalted fabric)[.]
…
* * * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to 68.05 states, in pertinent part:
This heading covers textile material, paper, paperboard, vulcanised fibre, leather or other materials, in rolls or cut to shape (sheets, bands, strips, discs, segments, etc.), or in threads or cords, on to which crushed natural or artificial abrasives have been coated, usually by means of glue or plastics. The heading also covers similar products of nonwovens, in which abrasives are uniformly dispersed throughout the mass and fixed on to textile fibres by the bonding substance. The abrasives used include emery, corundum, silicon carbide, garnet, pumice, flint, quartz, sand and glass powder. The bands, discs, etc., may be sewn, stapled, glued or otherwise made up; the heading includes, for example, tools such as buff-sticks, made by permanently fixing abrasive paper or cloth onto blocks or strips of wood, etc…
The goods of this heading are mainly used (by hand or mechanically) for smoothing or cleaning up metal, wood, cork, glass, leather, rubber (hardened or not) or plastics; also for smoothing or polishing varnished or lacquered surfaces, or for sharpening card clothing.
* * * * *
The instant dishwand refill sponge pad consists of a polyurethane foam sponge which is attached to a non-woven textile layer which contains PVC. In addition, a plastic “shoe” is attached to the sponge. Thus, it is composed of materials which are classifiable under different headings under the HTSUS. The plastic shoe and the polyurethane foam sponge are classified under headings 3926 and 3921, respectively, while the non-woven textile layer is classified under heading 6307. Since the instant sponge pad is not classifiable by GRI 1, and because the article is a composite good which consist of different materials, GRI 3 governs.
GRI 3 provides:
…
When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
…
(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
The relevant EN for GRI 3(b) provides:
(VIII) 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 goods.
GRI 3(b) requires that classification be based on the component that provides the article with its essential character. As noted above, EN (VIII) to GRI 3(b) provides that when performing an essential character analysis, the factors that should be considered are the bulk, quantity, weight or value, or the role of a constituent material in relation to the use of the goods. There have been several court decisions on "essential character" for purposes of classification under GRI 3(b). See, e.g., Conair Corp. v. United States, 29 C.I.T. 888 (2005); Structural Industries v. United States, 360 F. Supp. 2d 1330, 1337-1338 (Ct. Int’l Trade 2005); and Home Depot USA, Inc. v. United States, 427 F. Supp. 2d 1278, 1295-1356 (Ct. Int’l Trade 2006), aff’d 491 F.3d 1334 (Fed. Cir. 2007). “[E]ssential character is that which is indispensable to the structure, core or condition of the article, i.e., what it is.” Home Depot USA, Inc. v. United States, 427 F. Supp. 2d at 1293 quoting A.N. Deringer, Inc. v. United States, 66 Cust. Ct. 378, 383 (1971). In particular in Home Depot USA, Inc. v. United States, the court stated “[a]n essential character inquiry requires a fact intensive analysis.” 427 F. Supp. 2d 1278, 1284 (Ct. Int’l Trade 2006). Therefore, a case-by-case determination on essential character is warranted in this situation.
The textile layer accounts for approximately more than 50% of the total weight in the 483-12 Refill. Thus, the textile web layer constitutes an approximate majority of the weight of the three layers in the dishwand refill. Additionally, the textile layer plays the most important role in the use of the good. As noted above, the product is designed to clean and scour dishes and other kitchen surfaces. The textile layer plays the most important role in that activity because it is the component that performs the cleaning and scrubbing function. Without this layer, the dishwand refill is simply a polyurethane foam sponge. With respect to the plastic shoe which allows the refills to snap into a dishwand, we note that the dishwand refill does not lose its cleaning and scrubbing ability if used without the dishwand. Thus, the textile web layer has a more important role in the overall use of the dishwand refill because it provides the scouring/scrubbing function. Accordingly, we find that the textile layer is the component that provides the essential character of the 483-12 dishwand refill because the textile web layer plays a vital role in cleaning. Hence, we agree with 3M that it is the classification of the textile layer, which imparts the good with its essential character that governs classification of the entire composite good.
The next question before us the proper classification of the non-woven textile layer which contains PVC particles. 3M asserts that the PVC is an “artificial abrasives powder or grain.” Insofar as Note 1(q), Section XI, HTSUS, excludes abrasive-coated textiles, if the textile layer is classified as such in heading 6805, HTSUS, it cannot be classified in Section XI, as a textile article. Therefore, we turn first to the terms of heading 6805, HTSUS, which provides for “artificial abrasive powder or grain, on a base of textile material.” 3M claims that the PVC is an “artificial abrasives powder or grain”.
Although the term “abrasive” is not defined in the HTSUS, the courts provided guidance on the term in the context of the TSUS provision for “crude artificial abrasives.” See Tariff Act of 1930, 19 U.S.C. 1940 ed. § 1201, par. 1672. In C.J. Tower & Sons v. United States (“C.J. Tower”), 17 Cust. Ct. 72 (1946), the issue before the U.S. Custom Court was whether “Alundum” was classifiable in the TSUS provision for “crude artificial abrasives, not specially provided for.” The court concluded that alundum was classifiable as an abrasive, based upon legislative history to the Tariff Act of 1922 which showed that Congress knew of alundum as an artificial abrasive, when contemplating what commodities the Tariff Act should provide for:
ARTIFICIAL ABRASIVES—description and uses—Artificial abrasives are of two kinds (1) silicon carbides, sold under the trade names of carborundum.... ; and (2) aluminum oxides, sold as alundum…
Ibid, at 18-19. In C.J. Tower, the importer claimed that its merchandise fell into a class of merchandise which was chiefly used for abrasive purposes. The court found that Webster’s definition of “abrasive” supported the importer’s claim:
Any substance used for abrading, as for grinding, polishing, etc. It is often made into grinding wheels with a binder, or attached to paper or cloth or glue. The principal natural abrasives are emery, corundum, garnet, pumice, Tripoli and quartz sand. The principal manufactured abrasives are silicon carbide and fused aluminum oxide.
Id., at 13. While the provision for “crude artificial abrasives” under the TSUS no longer exists, the term “abrasive” remains in the heading at issue.
The analysis in C.J. Tower is echoed by the exemplars in the EN 68.05, which states “The abrasives used include emery, corundum, silicon carbide, garnet, pumice, flint, quartz, sand and glass powder. . . .” Furthermore, under the uniform usage rule of statutory construction, terms ordinarily have the same meaning throughout the statute, unless there is such variation in connection in which the words are used. See Gen. Dynamics Land Syst. v. Cline, 540 U.S. 581, 591-596 (2004), Roberts, 132 S. Ct. 1350 (2012). For example, heading 2513, HTSUS, provides for natural abrasives: “pumice; emery; natural corundum, natural garnet and other natural abrasives, whether or not heat treated.” EN 25.13, HTSUS, explains that “artificial abrasives such as artificial corundum and silicon carbide” are provided for in other headings.
Therefore, under the uniform usage rule of statutory construction, the term “abrasives” in heading 6805, HTSUS, refers to the natural mineral abrasives covered by heading 2513, and other headings of chapter 25, HTSUS, and artificial (i.e., synthetic chemical) versions (i.e., imitations) of those natural abrasives. Articles classifiable in heading 6805, HTSUS, consist of a textile base covered with a natural mineral abrasive or with an artificial abrasive powder or grain. For example, a product classifiable in heading 6805, HTSUS, could be coated with the natural mineral abrasive corundum or with a synthetic chemical version of corundum (i.e., aluminum oxide). Hence, based on the court in C.J. Tower, the tariff terms and the ENs, we now have the following exemplars of abrasives: emery, corundum, silicon carbide, garnet, pumice, flint, quartz sand and glass powder, silicon carbide, and aluminium oxide. Many of these exemplars are mentioned two or three times. Plastics and PVC are notably absent.
PVC is a polymer of chapter 39. It does not have the properties of a mineral substance as shown by the fact that it burns up in laboratory testing for the presence of abrasives. Neither is its form described as a grain or powder attached to the textile material. Such plastic substances are formed within the nylon strands rather than attached as abrasive powders or grains. PVC is not a natural mineral abrasive of the type covered by heading 2513, HTSUS, nor is it an artificial version (i.e., imitations) of these natural abrasives. Thus, products with PVC incorporated into a textile would not be classifiable in heading 6805, HTSUS.
By application of GRI 3(b), the 483-12 dishwand refill pads are classified in heading 6307, HTSUS, specifically in subheading 6307.90.98, HTSUS, which provides for… “Other made up articles: including dress patterns: Other: Other: Other,” as the textile portion of the refill pad is a made up textile article produced in a finished state without sewing or further working, and applied to a polyurethane foam sponge, in accordance with Section XI, note 7.
HOLDING:
By application of GRI 3(b), the 483-12 dishwand refill pads are classified in heading 6307, HTSUS, specifically in subheading 6307.90.98, HTSUS, which provides for… “Other made up articles: including dress patterns: Other: Other: Other.” The Column 1 general rate of duty is 7% ad valorem.
Duty rates are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at http://www.usitc.gov/tata/hts/bychapter/index.htm.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Myles B. Harmon, Director
Commercial & Trade Facilitation Division