OT:RR:CTF:CPMM H302153 RRB
Victor Quintana
Import Supervisor
Mohawk Industries, Inc.
160 S. Industrial Blvd.
P.O. Box 12069
Calhoun, GA 30703
RE: Request for classification of non-slip grip pads
Dear Mr. Quintana:
This is in response to your request, dated September 28, 2018, on behalf of Aladdin Manufacturing Corp., for a binding ruling as to the classification of non-slip grip pads under the Harmonized Tariff System of the United States (“HTSUS”). Your request was received by the National Commodity Specialist Division of U.S. Customs and Border Protection (“CBP”) and was forwarded to our office for review. We apologize for the delay in responding.
Our decision as to the proper classification of the subject merchandise under the HTSUS is set forth below. Descriptions of the subject merchandise are based on descriptions of the same included in your ruling request and upon our inspection of product samples.
FACTS:
Your request pertains to four styles of non-slip grip pads. The non-slip grip pads are made from one hundred percent warp knitted, polyester open mesh fabric that is visibly coated on both sides with foamed polyvinyl chloride (“PVC”). The spaces within the mesh of each of the samples vary, with the largest spaces being approximately 0.125 inches by 0.125 inches. The grip pads come in the following sizes: 20 inches x 30 inches, 20 inches x 32 inches, 28 inches x 42 inches, 40 inches x 60 inches, and 56 inches x 90 inches.
These grip pads are used under rugs to add cushioning underfoot in order to reduce fatigue. They are also used for lining shelves, drawers and cabinets in the kitchen, bathroom and garage work areas.
ISSUE:
Whether the subject non-slip grip pads are classified in heading 3921, HTSUS, as “other plates, sheets, film, foil and strip, of plastics”; in heading 3926, HTSUS, as “other articles of plastics and articles of other materials of headings 3901 to 3914”; or in heading 5903, HTSUS, as “textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902.”
LAW AND ANALYSIS:
Classification under the 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 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 be applied in order.
The following provisions of the HTSUS are under consideration:
3921 Other plates, sheets, film, foil and strip, of plastics:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
5903 Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902:
* * * *
Section XI, note 1(h) excludes the following from classification under Section XI, “Textile and Textile Articles”: “[w]oven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with plastics, or articles thereof, of chapter 39.”
Note 2(p) to chapter 39, HTSUS, provides as follows:
2. This chapter does not cover:
***
(p) Goods of section XI (textiles and textile articles);
Note 10 to chapter 39, HTSUS, provides as follows:
In headings 3920 and 3921, the expression “plates, sheets, film, foil and strip” applies only to plates, sheets, film, foil and strip (other than those of chapter 54) and to blocks of regular geometric shape, whether or not printed or otherwise surface-worked, uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use).
Chapter 59, note 2(a)(3) excludes the following from classification is subheading 5903, HTSUS: “[p]roducts in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of color (chapter 39).”
* * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the proper classification of merchandise. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127 (August 23, 1989).
Under the title “Plastics and textile combinations” in the General Notes to the ENs to chapter 39, the following products are also covered by this chapter:
(b) Textile fabrics and nonwovens, either completely embedded in plastics
or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of colour.
The General Notes to the ENs to chapter 39 also state that “[h]eading 39.26 is a residual heading which covers articles, not elsewhere specified or included, of plastics or of materials of heading 39.01 to 39.14.”
* * * *
Because note 2 to chapter 39 excludes articles of section XI (textiles and textile articles) from classification in chapter 39, the initial issue before CBP is whether the subject merchandise is a textile fabric of heading 5903, HTSUS.
To determine whether the instant merchandise is a textile fabric of heading 5903, HTSUS, we must look to the terms of note 2(a)(3) to chapter 59, which excludes products in which the textile fabric is entirely coated or covered on both sides with plastic. Here, the polyester mesh fabric is visibly coated on both sides with PVC. In addition, the EN to chapter 39 explains that textile fabrics that are entirely coated on both sides with plastic are covered under chapter 39, HTSUS. Thus, pursuant to note 2(a)(3) to chapter 53 and the EN to chapter 39, the subject merchandise is excluded from classification in chapter 59.
Turning to classification in either heading 3921 or 3926, we note that heading 3926 is a residual provision that covers articles of plastics not specified elsewhere. Thus, the subject merchandise can only be classified in heading 3926, HTSUS, if they are excluded from heading 3921, HTSUS.
Classification in heading 3921, HTSUS, depends on whether non-slip grip pads are “sheets” of plastic under the terms of the heading. The term “sheets” is not defined in the text of the HTSUS or the Explanatory Notes. When terms are not so defined, they are construed in accordance with their common and commercial meaning. Nippon Kogasku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).
According to the Merriam-Webster Online Dictionary, a “sheet” is “a surface or part of a surface in which it is possible to pass from any one point of it to any other without leaving the surface.” See https://www.merriam-webster.com/dictionary/sheet (last visited May 30, 2019). The Oxford English Dictionary defines “sheet” as “a relatively thin piece of considerable breadth of a malleable, ductile, or pliable substance.” See https://www.oed.com (last visited May 30, 2019). The MacMillan Dictionary defines “sheet” as “a thin flat piece of paper, metal, plastic, glass, etc.” See
https://www.macmillandictionary.com/us/dictionary/american/sheet (last visited May 30, 2019).
Pursuant to the Merriam-Webster dictionary definition of a sheet, the instant grip pads feature a weave tight enough that it is possible to pass from any one point of it to another point without leaving the surface. Furthermore, CBP has consistently classified similar merchandise to the non-slip grip pads in past rulings. See Headquarters Ruling Letter (“HQ”) 088142, dated January 18, 1991 (classifying anti-slip mesh warp knit fabric that is completely encased in PVC in heading 3921); HQ 088909, dated April 22, 1991 (classifying stay put rug pad made of an open mesh warp knit fabric that is completely covered in PVC in heading 3921); New York Ruling Letter (“NY”) PD 816479, dated December 5, 1995 (classifying non-skid fabric covered in PVC in heading 3921); NY G83126, dated October 16, 2000 (classifying non-slip grip liner made of a PVC coated textile with an open-work warp knit construction in heading 3921); NY H86099, dated December 14, 2001 (classifying grip net shelf lining material consisting of an open work warp knit fabric that has been coated with PVC in heading 3921); NY I83543, dated July 31, 2002 (classifying non-skid material constructed from open mesh fabric that is coated on both sides with PVC and is used as drawer liners, non-skid rug pads, and shelf liners in heading 3921); NY K82162, dated January 15, 2004 (classifying non-skid material consisting of an open mesh fabric that is coated on both sides with PVC in heading 3921); NY L86033, dated July 20, 2005 (classifying anti-skid material consisting of an open mesh fabric coated on both sides with PVC in heading 3921); NY N033496, dated July 18, 2008 (classifying PVC coated anti-skid material composed of an open mesh fabric in heading 3921); and NY N044145, dated December 4, 2008 (classifying drawer liners composed of an open mesh fabric and encased on both sides with PVC in heading 3921). In each of these rulings, the subject merchandise was described as a non-slip/anti-skid/non-skid material composed of an open mesh fabric that was coated on both sides with PVC. Similar to the merchandise in these rulings, the subject non-slip grip pads are constructed from an open mesh fabric that is coated with PVC on both sides, creating a thin, continuous surface.
Accordingly, the non-slip grip pads, which are constructed from fabric that is completed covered in PVC on both sides, are considered sheets of plastic and are properly classified in heading 3921, HTSUS.
We note that certain rulings relying on the definition of “sheeting” in Sarne Handbags Corp. v. United States, 100 F. Supp. 2d 1126 (CIT 2000) classify geotextile mesh material and extruded polypropylene or polyethylene mesh in heading 3926, HTSUS. In Sarne, the Court of International Trade (“CIT”) defined the term “sheeting” as follows:
the common meaning of “sheeting” is material in the form of or suitable for forming into a broad surface of something that is unusually thin, or is a material in the form of a continuous thin covering or coating.
Sarne Handbags Corp., 100 F. Supp. 2d at 1134. The definition of “sheeting” in Sarne Handbags Corp. is similar to the above-mentioned dictionary definitions of “sheet”, which also describe a thin piece of material “in which it is possible to pass from any one point of it to any other without leaving the surface” (i.e., continuous). In HQ 965889, dated March 17, 2003, CBP relied on the Sarne Handbags Corp. definition in concluding that geotextile material is not classifiable in heading 3921, HTSUS:
[t]he open spaces of the instant geotextile material are large enough that the material cannot be considered to have a “broad surface.” The unusually wide spacing in the weave interrupts any sort of surface continuity that could be formed. . . .The weave is not tight enough, and the yarns are not close enough, for them to form a continuous surface. Accordingly, the instant geotextile material is not a ‘sheeting,’ nor a sheet of plastic that is classifiable in heading 3921, HTSUSA.
In HQ 965889, the size of the open spaces in the geotextile mesh varied from 16 mm x 16 mm to 21 mm x 24 mm. Similarly, in HQ 966281, the size of the open spaces in the geotextile mesh varied from approximately 0.5 inches by 0.5 inches to 2 inches x 2 inches.
Compared to the open spaces in the geotextile mesh material in HQ 965889 and HQ 966281, and the open spaces generally found in extruded polypropylene or polyethylene mesh as in HQ 967325 and HQ 967346, the spaces in the subject merchandise are noticeably smaller, as the sample with the largest sized spaces in the mesh fabric are only 0.125 inches by 0.125 inches. Accordingly, we find that these rulings, which relied on Sarne Handbags Corp. in finding that geotextile mesh and extruded mesh are not classified in heading 3921, are not dispositive of the classification of non-slip grip pads, which consist of a much tighter weave to form a thin, continuous surface. Thus, the non-slip grip pads are properly classified in heading 3921, HTSUS, as “[o]ther plates, sheets, film, foil and strip, of plastics.”
HOLDING:
By application of GRIs 1 and 6, the instant non-slip grip pads are classified in heading 3921, HTSUS, specifically under subheading 3921.12.1950, HTSUSA (Annotated), which provides for: “[o]ther plates, sheets, film foil and strip, of plastics: [c]ellular: [o]f polymers of vinyl chloride: [c]ombined with textile materials: [o]ther: [o]ther.” The column one, general rate of duty is 5.3% ad valorem.
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 at https://hts.usitc.gov/current.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered.
Sincerely,
Allyson R. Mattanah, Chief
Chemicals, Petroleum, Metals and Miscellaneous Classification Branch