CLA-2 OT:RR:CTF:TCM H258156 HvB
Richard E. Jarvis
R.E. Jarvis & Associates, Inc.
5 Hannan Ridge Road
Haverhill, MA 01832
RE: Modification of NY 875045; Classification of a cellulose sponge with non-woven cloth side containing talc
Dear Mr. Jarvis:
This letter is in reference to New York Ruling Letter (“NY”) 875045, issued to you on June 16, 1992, concerning the tariff classification of three rectangular cellulose regenerated sponges. One of the sponges was described as a cellulose sponge that had a non-scratch non-woven cloth on one surface which contained talc.
U.S. Customs and Border Protection (CBP) has reviewed NY 875045, and finds it to be in error with respect to the classification of the regenerated cellulose sponge that contains talc on its non-scratch non-woven cloth side. For the reasons that follow, we hereby modify NY 875045, with regard to the cellulose sponge attached to a non-woven cloth that contains talc.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed revocation was published on January 1, 2015, in the Customs Bulletin, Volume 49, No. 1. CBP received no comments in response to this notice.
FACTS:
In NY 875045, CBP classified the rectangular cellulose sponge attached to a non-scratch non-woven cloth that contained talc in subheading 5603.00.30, Harmonized Tariff Schedule of the United States (“HTSUS”), which provided for “Nonwovens, whether or not impregnated, coated, covered or laminated, other: laminated fabrics.” The subject sponge is made from regenerated cellulose.
ISSUE
Whether the subject sponge is classifiable in heading 5603, HTSUS, which provides for “Nonwovens, whether or not impregnated, coated, covered or laminated”, or in heading 6805, HTSUS, as “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.”
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (HTSUS) 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.
The HTSUS provisions under consideration are as follows:
5603 Nonwovens, whether or not impregnated, coated, covered or laminated
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:
Section XI, HTSUS, which covers Chapter 56, provides in pertinent part:
This section does not cover:
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(q) Abrasive-coated textile material (heading 6805) and also carbon fibers or articles of carbon fibers of heading 6815[.]
Chapter 68, HTSUS, provides in pertinent part:
This chapter does not cover:
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(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 (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The ENs to GRI 3(b) provides, in pertinent part, that:
(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.
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.
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The instant sponge is composed of regenerated cellulose sponge which has a non-woven textile cloth side that contains talc. Thus, heading 5603, HTSUS, does not completely describe the article, since the sponge is also composed of cellulose and talc, in addition to the non-woven textile backing. Nor is the classifiable under GRI 1 in heading 6805, HTSUS, as the terms “abrasive grain, on a base of textile material”, describes only part of the good. Since the instant article is not classifiable by GRI 1, and because the sponge is a composite good which consists of different materials, GRI 3 governs.
GRI 3 provides, in pertinent part:
…
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.
In this case, the textile cloth layer plays the most important role in the use of the sponge. As a “non-scratch” sponge, the product is designed to clean and scour dishes and other kitchen surfaces. The textile cloth 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 sponge is simply a regenerated cellulose sponge, which we note are sold to the consumer as separate products. Thus, the textile cloth layer has a more important role in the sponge because without it, the product is simply a sponge that has a different use, in that it that does not have a scouring/scrubbing function. The surface textile layer incorporates talc which provides the subject scrub sponge with its essential character, or the ability to clean household surfaces without scratching them. Accordingly, we find that the textile layer is the component that provides the essential character of the sponge, because the cloth layer plays a vital role in cleaning. Hence, it is the classification of the textile layer, which imparts the good with its essential character that governs classification of the entire composite good.
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, the HTSUS section where textiles and textile articles are classified. Therefore, we turn first to the terms of heading 6805, “artificial abrasive powder or grain, on a base of textile material.” 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 Courts 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, between 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, aluminium oxide, and Tripoli. Many of these exemplars are mentioned two or three times. Talc is notably absent.
However, these exemplars are further described by the next paragraph in the EN 68.05 which reads: “goods… 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.” For instance, emery is a variety of corundum (also listed) and is the hardest mineral after diamonds. It is used to make abrasive powder and coated abrasives such as emery cloth and emery paper which are used to abrade metal. They remove metal particles and rust from steel and other metals. But it also has a well-known use in emery boards used to file finger-nails. Pumice, a stone composed of volcanic ash, is used as an abrasive to “stone-wash” denim which abrades the fabric. It is also used to abrade callused skin and in toothpaste to remove plaque without removing enamel. Tripoli is used in polishing. Tripoli has had unique uses as an abrasive and the deburring of metal and plastic castings. The automobile industry uses it in buffing and included uses in sharping tools for wood polishing compounds in lacquer finishing. Garnet is often used as an abrasive because of how hard it is. It can be used as an abrasive blasting material in "water jet cutting," but has also been used in more simple grinding tools such as sandpaper to finish metals and wood.
Under the doctrine of “noscitur a sociis” meaning “it is known by its associates” which, as a rule of construction, “has the effect of declaring that the meaning of a word may be ascertained by reference to the meaning of words associated with it.” See Ruth F. Sturm, Customs Law and Administration, Third Ed. section 32.11 at 63 (2007). Though not listed as an exemplar, talc, too, can be used to clean up and smooth wood after sanding. It is also used in nylon grinding wheels. These uses provide evidence that talc is similar to some of the named exemplars above, particularly Tripoli in that it is a relatively soft abrasive mineral used on wood or lacquer, and to pumice and emery which, in addition to abrading the EN listed materials, are known for their ability to abrade skin, teeth or fingernails.
Furthermore, CBP has previously addressed the classification of abrasive articles on backings such as textile and paper. See, e.g., HQ 954857, dated December 8, 1993, in which we ruled that the “Scotchbrite Flap Brush and Combi Wheels” which was described as “surface conditioning abrasive products which are designed to clean and condition a surface for painting or plating operations, deburr drilled, punched or machined parts and/or provide a decorative scratch pattern on a workpiece” was classified in heading 6805, HTSUS.
By application of GRI 3(b), the subject sponge composed of an abrasive grain (talc) on a textile, is classified in heading 6805, HTSUS. Specifically, it is classified in subheading 6805.30.50, HTSUS, which provides for " Natural or artificial abrasive powder or grain, on a base of textile material, of paper, of paperboard or of other materials, whether or not cut to shape or sewn or otherwise made up: On a base of other materials: Other.” The column one general rate of duty is Free.
HOLDING:
Under the authority of GRI 3(b), the subject cellulose sponge containing talc is classified in heading 6805, HTSUS. It is specifically provided for in subheading 6805.30.50 HTSUS, which provides for “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: On a base of other materials: Other.” The applicable duty rate is Free.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY 875045 is MODIFIED.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the CUSTOMS BULLETIN.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division