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HQ 960863




October 28, 1998

CLA-2 RR:CR:GC 960863 HMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6815.99.20

Port Director of Customs
196 West Service Rd.
Champlain, NY 12919

RE: Protest 0712-97-100872; Flooring Felt; Subheading 6815.99.40; Explanatory Note (VIII) to GRI 3(b); Articles of other mineral substances not elsewhere specified or included; talc.

Dear Port Director:

This is our decision on Protest 0712-97-100872, filed against your classification of a non asbestos mineral flooring felt. The 1997 entries under protest were liquidated on May 9, 1997, and this protest timely filed on August 6, 1997.

FACTS:

The merchandise under protest is a non asbestos flooring felt made of 17% cellulose fiber, 67.55% mineral filler, 12.5% styrene butadiene latex, 1.5% acrylic latex, and 1.25% paper machine additives. The mineral filler is itself made of 45% talc and 22% calcium carbonate. The Customs Office of Laboratory and Scientific Services in Chicago, Illinois, performed an analysis on a flooring felt sample (laboratory report 3-98-10012-001, dated December 30, 1997) finding that the "sample, a gray white sheet goods measuring 0.51 millimeter thick, [was] composed principally of the minerals talc and calcite, with cellulose and styrene-butadiene rubber as binders. The analysis is substantially in agreement with the information supplied by the manufacturer."

The merchandise was entered under a provision for other articles of other mineral substances under subheading 6815.99.40 of the Harmonized Tariff Schedule of the United States (HTSUS). However, protestant claims that the merchandise is classifiable as other articles of talc under subheading 6815.99.20, HTSUS. The entries were liquidated under subheading 6815.99.40, HTSUS.

The 1997 HTSUS provisions under consideration are as follows:

6815 Articles of stone or of other mineral substances (including carbon fibers, articles of carbon fibers and articles of peat), not elsewhere specified or included:
Other articles:
6815.99 Other:
6815.99.20 Talc, steatite and soapstone, cut or sawed, or in blanks, crayons, cubes, disks or other forms...Free

6815.99.40 Other...0.4% (CA)

ISSUE:

Whether the flooring felt has the essential character of other articles of talc classifiable under subheading 6815.99.20, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 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, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6. GRI 6 states that the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.

There is no dispute that the flooring felt is described by heading 6815, HTSUS, and that the classification at the subheading level depends on the composition of the mineral filler. Protestant states that the mineral filler is made of 45% talc and 22% calcium carbonate, which was confirmed by the Customs Office of Laboratory and Scientific Services. Accordingly, we must determine whether the merchandise is classifiable as talc under subheading 6815.99.20, or as other mineral substances under subheading 6815.99.40, HTSUS.

Protestant contends that the product is classifiable under subheading 6815.99.20 and not 6815.99.40 because the talc imparts the essential character to the flooring felt. Pursuant to GRI 6, GRI 3(a) states that when, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more subheadings, the subheading which provides the most specific description shall be preferred to subheadings providing a more general description. However, when two or more subheadings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those subheadings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. We find that, since the flooring felt is made of at least two different chemical compounds, it meets the above conditions and, by application of GRI 3(b), it is classified according to the component that gives the good its essential character.

The Harmonized Commodity Description And Coding System Explanatory Notes (EN's) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN's provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the EN's should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

In general, essential character has been construed to mean that attribute which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure, core or condition of the article. Explanatory Note (VIII) to GRI 3(b), at page 4, states that 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.

It is Customs view that the talc imparts the essential character to the flooring felt. In HQ 957093, dated May 22, 1995, Customs held that talc imparted the essential character to a vinyl floor backing made of cellulose fibers, water, glass fibers, binder (styrene butadiene rubber) processing agents, talc and kaolin because the talc predominated by weight over the rest of the components. Similarly, in this case, we find that the talc predominates by weight over any other mineral component. Accordingly, the flooring felt is classifiable as if only consisting of talc under subheading 6815.99.20, HTSUS.

HOLDING:

Under the authority of GRI 3(b), the non asbestos mineral flooring felt is classifiable under subheading 6815.99.20, HTSUS, as other articles of other mineral substances: other: talc. The 1997 rate of duty is free.

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, you should mail this decision, together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the 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, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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