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HQ 957093




May 22, 1995

CLA-2 R:C:M 957093 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6815.99.2000

District Director
U.S. Customs Service
1717 East Loop, Room 401
Houston, Texas 77029

RE: Protest 5301-94-100450; vinyl floor backing composed of cellulose, binder, talc, glass fibers and processing agents; EN 68.15; General EN to Chapter 48; Chapter 47; pulp; cellulose fibers; General EN to Section X; ENs to Chapter 47; HRL 088645; GRI 3(b); composite good; essential character; EN Rule 3(b); HRL 086837; other articles of other mineral substances, not elsewhere specified or included, talc, cut or sawed, or in blanks, crayons, cubes, disks or other forms

Dear District Director:

This is in regards to Protest 5301-94-100450 concerning the tariff classification of vinyl floor backing under the Harmonized Tariff Schedule of the United States (HTSUS). Information presented at a meeting on January 26, 1995, and in additional submissions dated January 29, and March 31, 1995, were taken into consideration in rendering this decision. A sample was submitted for our examination.

FACTS:

The product is vinyl floor backing imported in 14 foot rolls. The vinyl floor backing is manufactured on a Fourdrinier machine. A slurry is prepared, consisting of cellulose fibers, water, glass fibers, binder (Styrene Butadiene Rubber) processing agents (manufacturer has not disclosed), talc and kaolin. As the slurry moves along the forming wire or fabric, most of the water gradually drains, forming a web of fibers from the slurry that is heated and dried. Although minor variations between production runs and within a run may slightly vary, the protestant states that the composition by weight of its product is as follows:

Ingredient Weight Percentage
cellulose fibers 13.5% binder 10.5% talc & kaolin 70.0% glass fibers 4.0% processing agents 2.0%

TOTAL 100.0%

The entries of the vinyl floor backing were liquidated on April 29, and May 13, 1994, under subheading 6815.99.4000, HTSUS, as other articles of other mineral substances, not elsewhere specified or included. This decision was based on the fact that the vinyl floor backing did not have the essential character of cellulose because it contained 81% by weight binders and fillers and only 13% by weight cellulose fibers.

The protestant contends that the essential character of the vinyl floor backing is the cellulose because it is the essential ingredient in the vinyl floor backing. Therefore, the vinyl floor backing is classified under subheading 4805.80.4090, HTSUS, as other paper and paperboard, weighing 225g/m2 or more, or subheading 4805.50.0000, HTSUS, as felt paper and paperboard, or subheading 4811.39.4040, HTSUS, as other paper and paperboard, coated, impregnated or covered with plastics (excluding adhesives), or subheading 4811.90.3000, HTSUS, as other paper, paperboard, cellulose wadding and webs of cellulose fibers, impregnated with latex, or subheading 4815.00.0000, HTSUS, as floor coverings on a base of paper or paperboard, where or not cut to size, or subheading 6815.99.20, HTSUS, as other articles of other mineral substances, not elsewhere specified or included, talc, cut or sawed, or in blanks, crayons, cubes, disks or other forms.

ISSUE:

Is the vinyl floor backing classified under subheading 6815.99.4000, HTSUS, as other articles of other mineral substances, not elsewhere specified or included?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in part, that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes...." The subheadings at issue are as follows:

4805 Other uncoated paper and paperboard, in rolls or sheets...

4805.50.0000 Felt paper and paperboard.

4805.80.4090 Other paper and paperboard, weighing 225 g/m2 or more...Other...Other.

4811 Paper, paperboard, cellulose wadding and webs of cellulose fibers, coated, impregnated, covered, surface-colored, surface-decorated or printed, in rolls or sheets, other than goods of heading 4803, 4809, 4810 or 4818...

4811.39.4040 Paper and paperboard, coated, impregnated or covered with plastics (excluding adhesives)...Other...Other...Other.

4811.90.3000 Other paper, paperboard, cellulose wadding and webs of cellulose fibers...Other...Other...Impregnated with latex.

4815.00.0000 Floor coverings on a base of paper or paperboard, where or not cut to size.

6815 Articles of stone or of other mineral substances (including articles of peat), not elsewhere specified or included...

6815.99.2000 Other articles...Other...Talc, steatite and soapstone, cut or sawed, or in blanks, crayons, cubes, disks or other forms.

6815.99.4000 Other articles...Other...Other.

You classified the vinyl floor backing under subheading 6815.99.4000, HTSUS, as other articles of other mineral substances, not elsewhere specified or included. In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System (ENs) may be consulted. The ENs, although not dispositive nor legally binding, 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. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 68.15 (pgs. 909-910), states that heading 6815, HTSUS, "...covers articles of stone or of other mineral substances, not covered by the earlier headings of this Chapter and not included elsewhere in the Nomenclature...." Therefore, if the vinyl floor backing is classified elsewhere in the HTSUS, classification under heading 6815, HTSUS, is inappropriate.

The protestant contends that the vinyl floor backing is classifiable within Chapter 48, HTSUS. General EN to Chapter 48 (pg. 664), states that:

Paper consists essentially of the cellulosic fibres of the pulps of Chapter 47 felted together in sheet form. Many products, such as certain tea-bag materials, consist of a mixture of these cellulose fibres and of textile fibres (in particular man-made fibres as defined in Note 1 to Chapter 54). Where the textile fibres predominate by weight, the products are not regarded as paper and are classified as nonwovens (heading 56.03)

Therefore, to be considered paper, the vinyl floor backing must be one of the pulps described in Chapter 47, HTSUS, and consist essentially of cellulose fibers.

Chapter 47, HTSUS, provides for pulp of wood or of other fibrous cellulosic material; waste and scrap of paper or paperboard. General EN to Section X (pg. 655), states in pertinent part that "[t]he pulp of this Chapter consists essentially of cellulose fibers obtained from various vegetable materials, or from waste textiles of vegetable origin." These notes also state that other materials used for making pulp include the following: cotton linters; rags (particularly cotton, linen or hemp) and other textile wastes such as old ropes; straw, esparto, flax, ramie, jute, hemp, sisal, bamboo and various other grasses and reeds; and waste and scrap of paper or paperboard.

We are of the opinion that the intent of the above ENs is to exclude from Chapter 48, HTSUS, all products, unless specifically provided for, in which fibers other than cellulose predominate by weight. We note that other articles known commercially as "paper" are not classifiable in Chapter 48, HTSUS, i.e., asbestos paper is classifiable under heading 6812, HTSUS. In this case, the pulp from which the vinyl floor backing is made does not consist essentially of cellulosic fibers based on the low percentage (13.5%) of cellulose fibers present in the vinyl floor backing. Moreover, in examining the headings of Chapter 47, HTSUS, we find that the pulp of the vinyl floor backing is not described therein. The ENs to Chapter 47 (pgs. 656-688), described 4 basic types of pulp: mechanical wood pulp, chemical wood pulp, semi-chemical wood pulp and pulps of other fibrous cellulosic materials. An examination of the ENs makes it clear that the vinyl floor backing is not included within any of these descriptions. Nor can the vinyl floor backing be said to be a pulp of other cellulosic fibers as it is not made essentially of any "[o]ther materials used for making pulp" listed in the General EN to Chapter 47 (pg. 655). See, Headquarters Ruling Letter (HRL) 088645 dated March 26, 1992, which held that a non-asbestos gasket material composed of 7% cellulose fibers was not classifiable as other paper or paperboard under subheading 4805.70.40, HTSUS. Thus, the vinyl floor backing is not classifiable as paper within Chapter 48, HTSUS, pursuant to GRI 1, HTSUS. Additionally, we find no other heading of the nomenclature eligible for GRI 1, HTSUS, classification.

The article in this case is composed of various components, i.e., cellulose, talc, kaolin, glass fibers, binder and flocculating agent. When, by application of GRI 2, HTSUS, goods are prima facie classifiable under two or more headings, GRI 3, HTSUS, is applicable. In this case, classification is determined by application of GRI 3(b), HTSUS, which provides:

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.

EN Rule 3(b) (pg. 4), states that:

The factor which determines essential character will vary 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.

Among the components of the vinyl floor backing, other than cellulose fibers, talc is the predominant material. Because the talc predominates by weight over the rest of the components, it represents the essential character of the vinyl floor backing. Therefore, the vinyl floor backing is classified under subheading 6815.99.2000, HTSUS, as other articles of other mineral substances, not elsewhere specified or included, talc cut or sawed, or in blanks, crayons, cubes disks or other forms. See, HRL 086837 dated July 2, 1990, which classified rolls of mineral felt composed of talc, tar, waste paper, latex and fiberglass, under subheading 6815.99.2000, HTSUS.

HOLDING:

The vinyl floor backing is classified under subheading 6815.99.2000, HTSUS, as other articles of other mineral substances, not elsewhere specified or included, talc, cut or sawed, or in blanks, crayons, cubes, disks or other forms. This protest should be GRANTED.

In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter, unless the protest is resubmitted to the Office of Regulations and Rulings. Any reliquidation of the entry in accordance with this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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