CLA-2 OT:RR:CTF:TCM H088423 CkG
TARIFF NO: 3824.90.92
Port Director
U.S. Customs and Border Protection
19 Causeway Street, Room 603
Boston, MA 02222
Re: Internal Advice # 10/001; classification of Gillette Shaver Cleaning Cartridge
Dear Port Director,
This letter is in reply to your memorandum dated December 8, 2009, forwarding
Request for internal advice #10/001, initiated on behalf of the Gillette Company. At
issue is the classification of a Gillette Shaver Cleaning Cartridge. The product was
entered in heading 2207 of the Harmonized Tariff Schedule of the United States
(HTSUS), which provides for “Undenatured ethyl alcohol of an alcoholic strength by
volume of 80 percent vol. or higher; ethyl alcohol and other spirits, denatured, of any
strength.” It is the Port’s position that the merchandise is classifiable in heading 3824,
HTSUS, which provides for “Prepared binders for foundry molds or cores; chemical
products and preparations of the chemical or allied industries (including those consisting
of mixtures of natural products), not elsewhere specified or included.” The importer
claims classification in heading 2207, HTSUS,
FACTS:
The instant merchandise is a shaver cleaner cartridge consisting of a perfumed cleaning and lubricating solution in a plastic container. The cartridge is specially designed to allow the solution to circulate through a filtering medium which catches debris released from the shaver’s cutting mechanism during the cleaning process. The solution is composed of 94.26% ethyl alcohol and 1.25% distilled water, with the remaining 4.49% being comprised of propanol, a UV stabilizer, and a perfume oil containing lubricant, a hygiene agent, and aromatic compounds. The perfume oil mixture is to impart a scent to the solution, and the oil is used to lubricate the shaving parts after cleaning.
In NY G81897, dated September 14, 2000, a previous iteration of the same product was classified in heading 2207, HTSUS.
ISSUE:
Whether the plastic cartridge or the cleaning solution imparts the essential character of the article
If the cleaning solution imparts the essential character to the whole article, is it classified in heading 2207, HTSUS, as denatured ethanol, or in heading 3824, HTSUS, as an other chemical preparation.
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by 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 GRIs 2 through 6 may then be applied in order.
Because the cleaning cartridges are composite goods consisting of the cleaning solution and plastic and are not described in their entirety by any HTSUS provision, their classification is governed by GRI 3(b). GRI 3(b) provides that composite goods consisting of different materials or made up of different components, shall be classified as if they consisted of the material or component which gives them their essential character. The “essential character” of an article is “that which is indispensable to the structure, core or condition of the article, i.e., what it is.” Structural Industries v. United States, 360 F. Supp. 2d 1330, 1336 (Ct. Int’l Trade 2005). EN VIII to GRI 3(b) explains that "[t]he 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 the constituent material in relation to the use of the goods." Recent court decisions on the essential character for GRI 3(b) purposes have looked primarily to the role of the constituent material in relation to the use of the goods. See Structural Industries, 360 F. Supp. 2d 1330; Conair Corp. v. United States, 29 C.I.T. 888 (2005); Home Depot USA, Inc. v.
United States, 427 F. Supp. 2d 1278 (Ct. Int’l Trade 2006), aff’d 491 F.3d 1334 (Fed. Cir. 2007).
In the instant case, we find that the essential character of the good is imparted by the cleaning and lubricating solution, due to the role of the solution in relation to the use of the good. The plastic cartridge serves only as a vehicle for the solution, which is what performs the actual function of the product as a whole—i.e., the cleaning and lubrication.
With regard to the classification of the cleaning/lubricating solution, the issue is whether it is classified as denatured alcohol of heading 2207, HTSUS, or as an “other” chemical mixture of heading 3824, HTSUS.
The HTSUS provisions under consideration are as follows:
2207: Undenatured ethyl alcohol of an alcoholic strength by volume of 80 percent vol. or higher; ethyl alcohol and other spirits, denatured, of any strength
2207.20.00: Ethyl alcohol and other spirits, denatured, of any strength . . . .
* * * * *
3824: Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included:
3824.90: Other:
Other:
Other:
Other:
3824.90.92: Other:
* * * * *
The Harmonized Commodity Description and Coding System Explanatory Notes
(“ENs”) constitute the official interpretation of the HTSUS. While not legally binding or
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 at the
international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN 22.07 provides, in pertinent part, as follows:
The heading covers :
(1) Undenatured ethyl alcohol of an alcoholic strength by volume of 80% vol or higher.
(2) Ethyl alcohol and other spirits, denatured, of any strength.
Ethyl alcohol is the alcohol which occurs in beer, wine, cider and other alcoholic beverages. It is obtained either by fermentation of certain kinds of sugar by means of yeast or other ferments and subsequent distillation, or synthetically.
Ethyl alcohol and other spirits, denatured, are spirits mixed with substances to render them unfit for drinking but not to prevent their use for industrial purposes. The denaturants used vary in different countries according to national legislation. They include wood naphtha, methanol, acetone, pyridine, aromatic hydrocarbons (benzene, etc.), colouring matter.
Ethyl alcohol is used for many industrial purposes, e.g., as a solvent in the manufacture of chemicals, varnishes, etc., for heating or lighting, for the preparation of spirituous beverages.
The heading does not cover :
Undenatured ethyl alcohol of an alcoholic strength by volume of less than 80
% vol (heading 22.08).
(b) Other spirits (unless denatured) (heading 22.08).
Solid or semi solid fuels with a basis of alcohol (often sold as " solidified
alcohol ") (heading 36.06).
* * * * *
EN 34.02 provides, in pertinent part, as follows:
Cleaning or de-greasing preparations, not having a basis of soap or other
organic surface-active agents.
These include :
(i) Acid or alkaline cleaners specially formulated for cleaning sanitary ware, frying-pans, etc., e.g., those containing sodium hydrogen sulphate or a mixture of sodium hypochlorite and trisodium orthophosphate.
(ii) Degreasing or cleaning preparations, used, e.g., in dairies or breweries, and with a basis of :
- alkaline substances such as sodium carbonate or caustic soda, or
- solvents and emulsifiers.
This group of products may contain small quantities of soap or other surface-
active agents.
* * * * *
EN 22.07 defines denatured ethyl alcohol as ethyl alcohol mixed with substances which render it unfit for drinking but not to prevent its use for industrial purposes. Tertyl-butly alcohol and Bitrex were used as denaturants for the ethanol in the instant solution. The specifications provided by the importer further indicate that the instant solution is composed of 94.26% ethyl alcohol and 1.25% distilled water, with the remaining 4.49% being comprised of propanol, a UV stabilizer, and a perfume oil mixture containing lubricant, a hygiene agent, and aromatic compounds for fragrance.
CBP has found in some cases that the presence of additives were insufficient to change the classification of an otherwise pure substance where the quantity of additives was deemed de minimis. However, at some point as an otherwise pure substance is mixed with additives or further processed that mixture ceases to be classified as a pure substance. The de minimis rule states that an ingredient or component of an article may be ignored for classification purposes depending upon "whether or not the amount
used has really changed or affected the nature of the article and, of course, its salability." Varsity Watch Company v. United States, 34 CCPA 155, C.A.D. 359 (1947). See also Alcan Aluminum Corporation v. United States, 165 F.3d 898 (Fed. Cir. 1999) ("under the de minimis rule implemented by…General Note [3], a component which is merely an incidental or immaterial element of an entire article, does not enhance its value, and has no commercial purpose, is disregarded for classification purposes").
The additives present in the instant mixture are not incidental; they are added to enhance the value of the product and to render it suitable for a specific use—i.e., to provide fragrance, to clean, disinfect and lubricate the shaver. The additives thus have a specific commercial purpose and therefore enhance the value of the product. CBP has considered additives to be de minimis in some cases. However, the number and proportion of additives exceeds that deemed de minimis by CBP in other instances. See e.g., HQ 088756, dated April 8, 1991, in which CBP considered whether the addition of trace amounts of calcium, citric acid and malic acid to orange juice concentrate was significant enough to change the product’s classification from an orange juice of heading 2009, HTSUS, to a food preparation of heading 2106, HTSUS. The ruling held that the calcium fortifier, citric and malic acids were de minimis, and the product remained classifiable as a juice of heading 2009, HTSUS. See also, HQ 967647, dated February 24, 2006, a product consisting of 95 percent to 98 percent cane or beet sugar with the balance consisting of citric acid was classified at GRI 3 in heading 1701, which provides for “cane or beet sugar and chemically pure sucrose, in solid form.” Hence, the presence of the additives in this case change the nature of the mixture, which can no longer be characterized solely as denatured alcohol of heading 2207, HTSUS.
Because the instant solution is a cleaning preparation, we have also considered heading 3402, HTSUS, which provides for, inter alia, cleaning preparations, whether or not containing soap. However, the EN to heading 3402 states that cleaning preparations of that heading, not having a basis of soap or surface active agents, should have a basis of either: alkaline substances such as sodium carbonate or caustic soda, or solvents and emulsifiers. The instant cleaning solution contains a solvent but no emulsifier, acid or alkali. We thus do not consider this to be a product of heading 3402, HTSUS. As the product is a chemical mixture not described elsewhere in the tariff, it is classified in heading 3824, HTSUS.
Gillette further cites to New York Ruling G81897, which classified a previous version of this product in heading 2207, HTSUS. According to the importer, the only change in the composition of the instant mixture compared to the version classified in NY G81897, was the substitution of a different type of lubricant, at the same percentage. However, that ruling merely describes the product as “denatured ethyl alcohol and a fragrance.” The complete breakdown of ingredients in the cleaning solution was not provided to CBP at the time NY G81897 was issued. Accordingly, CBP properly classified the solution based on the information provided to CBP. Therefore, because CBP relied on a different set of facts in NY G81897 than are currently under consideration, NY G81897 is inapplicable in the instant case.
The Gillette shaver cartridge with cleaning solution is classified at GRI 1 in heading 3824, HTSUS.
HOLDING:
By application of GRIs 1 and 3, the Gillette shaver cleaning cartridge is classified
in heading 3824, HTSUS, specifically in subheading 3824.90.92, HTSUS, which
provides for “Prepared binders for foundry molds or cores; chemical products and
preparations of the chemical or allied industries (including those consisting of mixtures
of natural products), not elsewhere specified or included: Other: Other: Other: Other: Other.” The 2010 general, column one rate of duty is 5% ad valorem.
You are to mail this decision to the internal advice requester no later than 60
days from the date of the decision. At that time, the Office of International Trade,
Regulations and Rulings, will make the decision available to CBP personnel and to the
public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of
the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division