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HQ 952491


November 20, 1992

CLA-2 CO:R:C:T 952491 CAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9986

B. B. Nelson Jr., Esq.
Nelson International Inc.
215 E. Plume Street, Suite 220
Norfolk, VA 23510

RE: Classification of polypropylene cleaning articles; classifiable under Heading 6307; GRI 3(c); Note 7, Section XI

Dear Mr. Nelson:

This letter is in response to your ruling request of July 22, 1992, on behalf of Innovative Cleaning Concepts, requesting a tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Four samples were submitted for examination.

FACTS:

The submitted samples consist of household cleaning items imported from India. The first sample, a scrubbing mitt, is a mitten-shaped textile cleaning cloth with an outer surface of polypropylene strips. The mitt has an internal adhesive layer, a hanging loop, and a lining of knitted material with tiny loops.

The second sample is an oval-shaped pad made from polypropylene strips on the outer surface, an internal adhesive layer, and a bottom layer of knitted terry fabric. The pad measures approximately 12 by 9 centimeters. Although no sample was submitted, the importer states that another version of the pad containing both a front and back polypropylene pile surface will be imported.

The third and fourth samples are pads made from a layer of polypropylene material with an internal adhesive layer attached to a urethane sponge. The third sample is circular in shape, measures six inches in diameter and is four centimeters thick. The fourth sample is rectangular in shape, measures approximately 12.5 by 8.5, and is two centimeters thick. Although no sample was submitted, the importer states that an oval shaped version will also be imported.

The final item at issue, a sample of which was not submitted, is a bottle washer. As stated by the importer, the bottle washer will consist of a plastic or metal handle attached to a circular sponge-backed pad similar to the third Sample.

ISSUE:

What is the applicable tariff classification of the merchandise at issue?

FACTS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's, taken in order.

After examining the merchandise in its totality, it appears that it cannot be classified solely on the basis of GRI 1. Thus, subsequent GRIs must be consulted for tariff classification purposes. Because the merchandise in question is composed of various materials which include polypropylene strips on the outer surface, a foamed material on the inner surface, a terry cloth fabric lining, and an adhesive layer, GRI 2(b) is the applicable provision. GRI 2(b) states, in pertinent part:

Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances...The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.

GRI 3(a) requires that where two or more headings describe the merchandise, the more specific will prevail; however, if two or more headings each refer to part only of the materials in the goods, then classification will be by GRI 3(b). GRI 3(b) provides that the material or component which imparts the essential character to the goods will determine the classification.

In determining the essential character of goods in accordance with GRI 3(b), Customs looks to various factors for guidance. Such factors include, but are not limited to, 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.
It is important to note that all of the articles in question contain an internal adhesive layer in order to attach the various materials. However, this adhesive layer is not substantial enough to impart the essential character of any of the articles in question.

Sample 1, the scrubbing mitt, is comprised of polypropylene strips on the exterior, and knitted terry material in the interior. Sample 2, the oval-shaped pad, is made of polyethylene strips on one side, and a knitted terry fabric on the reverse side. You also state that another version of the oval-shaped pad will be imported. This unsubmitted oval-shaped pad will contain a polypropylene surface on each side. When determining the essential character of Samples 1 and 2, it appears that the polypropylene, a textile, is the attribute which strongly distinguishes both articles. The polypropylene material is instantly visible and is the principal material used for cleaning purposes. The knitted terry material merely acts as a liner for Samples 1 and 2. As stated in Headquarters Ruling Letter (HRL) 950990 of July 29, 1992:

It is Customs position that while linings, interlinings or nonwoven insulating layers do impart desirable and perhaps necessary features to garments, it is usually the outer shell which imparts the essential character to the garment.

Although HRL 950990 refers to garments, the same rationale is applicable to Samples 1 and 2. Consequently, the polypropylene strips impart the essential character of the cleaning mitt and the oval-shaped pad. If the unsubmitted oval-shaped pad is imported exactly as you described, then it will also be classified according to its outer shell.

Samples 3 and 4, are both pads composed of polypropylene strips on one side and a urethane sponge on the other side. You also state that you will import a bottle washer, which you describe as a circular, sponge-backed pad, with either a plastic or metal handle. After examining Samples 3 and 4, it appears that none of the materials impart the essential character of the goods. The polypropylene side is constructed for scouring hard to clean surfaces. The urethane sponge is designed for absorbing spills. In essence, Samples 3 and 4 are comprised of two distinct materials that are used for various purposes. Neither constituent material strongly individualizes the articles in question. Thus, in this instance, the criteria used to determine essential character does not provide an adequate resolution.

GRI 3(c) provides, in pertinent part:

When goods cannot be classified by reference to Rule 3(a) or 3(b), they are to be classified in the heading which occurs last in numerical order among those which equally merit consideration in determining their classification.

Samples 3 and 4 are potentially classifiable under two distinct headings. One such heading is Heading 3923, HTSUSA, which provides for tableware, kitchenware, other household articles and toilet articles, of plastics.

The other potential heading is Heading 6307, HTSUSA, which is a basket provision for made up textile articles not provided for elsewhere in the tariff. Pursuant to GRI 3(c), samples 3 and 4 are classifiable under Heading 6307, HTSUSA, as it occurs last in numerical order among those which equally merit consideration.

Subheading 6307.10 specifically provides for floorcloths, dishcloths, dusters and similar cleaning cloths. The word "cloth" when used alone and in relation to material, generally refers to material consisting of a single layer of fabric. In (HRL) 085671 of January 3, 1990, we determined that "the definition of specific purpose `cloths' such as those enumerated in subheading 6307.10, is not similarly restricted, so long as the articles are used for cleaning purposes and reasonably fit the description of floorcloths, dishcloths, dusters or similar cleaning cloths."

The instant items are described as "cleaning pads" instead of "cleaning cloths." However when determining a proper classification category, we look to more than the way in which an article is described. The articles in question fit into a class or kind of merchandise used for cleaning. The merchandise is constructed of polyethylene, a textile material, on the exterior and a foam material on the interior. Such a construction enhances the articles' durability and absorbency during cleaning. However, even though the instant articles are designed expressly for cleaning, they are not "cloths" as described by subheading 6307.10. Generally, "cloths" are soft, very flexible pieces of material. The articles in question, however, contain a rigid, hard surface that is not commonly recognizable as a "cloth". Moreover, they do not reasonably fit the description of similar cleaning cloths and therefore, are not classifiable under subheading 6307.10, HTSUSA.

Note 7, Section XI, HTSUSA, states in pertinent part:

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); (c) Hemmed or with rolled edges, or with a knotted fringe at any of the edges, but excluding fabrics the cut edges of which have prevented from unraveling by whipping or by other simple means;

(d) Cut to size and having undergone a process of drawn thread work;

(e) Assembled by sewing, gumming or otherwise (other than piece goods consisting of two or more lengths of identical material joined end to end and piece goods composed of two or more textiles assembled in layers, whether or not padded); or

(f) Knitted or crocheted to shape, presented in the form of a number of items in the length.

The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN), although not legally binding, are the official interpretation of the tariff at the international level. The EN for Section XI further explain the meaning of "made up" in the following:

(1) Merely cut, otherwise than into squares or rectangles, for example, dress patterns of textile material; articles with their edges pinked (e.g. certain dusters) are also regarded as made up.

The Notes further state:

However, rectangular (including square) articles simply cut out from larger pieces without other working and not incorporating fringes formed by cutting dividing threads are not regarded as "produced in the finished state" within the meaning of this Note. The fact that these articles may be presented folded or put up in packings (e.g. for retail sale) does not affect their classification.

There is a question as to whether Sample 4, the rectangular shaped pad should be considered "made up" due to Note 7(a). However, when examining the fourth sample in accordance with the EN, we believe that the sample's rectangular shape is not the deciding factor in determining whether it is "made up". Instead we look to whether the rectangular article has been assembled pursuant to Note 7(e), Section XI, HTSUSA, and is subject to further processing within the purview of the EN. In this instance, the rectangular article is composed of three textiles (polypropylene strips, terry lining, and an adhesive) that have been assembled in layers. Moreover, the rectangular pad is not subject to any further processing. Therefore, pursuant to the EN and Note 7(e), Section XI, HTSUSA, Sample 4 is "made up". The first, second, third, and fourth samples which consist of the scrubbing mitt, oval pad, circular pad, and rectangular pad respectively, are all classifiable under Heading 6307, HTSUSA. Each article is constructed of various textile materials. None of the items are more specifically provided for in any other provisions of the tariff. Finally, in accordance with Note 7, Section XI, HTSUSA, all of the articles meet the requirements for "made up" goods.

If both the unsubmitted bottle washer and oval pad are imported exactly as you described, they are also classifiable under Heading 6307, HTSUSA.

HOLDING:

Based on the foregoing, all of the merchandise in question is classifiable under subheading 6307.90.9986, HTSUSA, which provides for other made up articles. The applicable rate of duty is 7 percent ad valorem.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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