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HQ 967722





December 8, 2005

CLA-2 RR:TCM:CTF 967722 TMF

CATEGORY: CLASSIFICATION

TARIFF NO.: 5603

Port Director
U.S. Customs and Border Protection
200 E. Bay Street
Charleston, SC 29401-2611

RE: Protest and Application for Further Review (AFR) 1601-04-100215

Dear Port Director:

This is a decision on an Application for Further Review (AFR) of a protest timely filed on August 3, 2004, by Kuehne and Nagel, Inc., on behalf of their client, Rockline Industries, Inc. The protest concerns the classification and liquidation of seven entries containing Clorox Pine Sol Wipes on June 18, 2004.

FACTS:

The protest concerns the classification of Clorox Pine Sol Floor Wipes. The subject wipes are described as 140g/m2 air laid wipes formed on a spun bound nonwoven material that is pre-saturated with a proprietary cleaning liquid. The wet floor wipes are used with Swiffer and Grab-It Sweeper mops and are designed to be attached to a mop. The wipe is disposable after use. The wet floor wipes are treated with alcohol, antiseptic/germicide, surfactant, water, fragrance and solvent.

The protestant claims that AFR is warranted on the basis that the instant protest is inconsistent with prior CBP rulings that classified similar merchandise. The protestant asserts that the goods should be classified in subheading 3401.19.0000, HTSUS, which provides for: "Soap; organic surface-active products and preparations for use as soap, in the form of bars, cakes, molded pieces or shapes, whether or not containing soap; organic surface-active products and preparations for washing the skin, in the form of liquid or cream and put up for retail sale, whether or not containing soap; paper, wadding, felts and nonwovens, impregnated, coated or covered with soap or detergent: Soap and organic surface-active products and preparations, in the form of bars, cakes, molded pieces or shapes, and paper, wadding, felt and nonwovens, impregnated, coated or covered with soap or detergent: Other."

The Port liquidated the entries in subheading 3402.90.5030, HTSUS, which provides for "[o]rganic surface-active agents (other than soap); surface-active preparations, washing preparations (including auxiliary washing preparations) and cleaning preparations, whether or not containing soap, other than those of heading 3401: Other: Other: Other, Cleaning preparations."

The Port now believes the merchandise is properly classifiable in heading 5603, HTSUS, which provides for "Nonwovens, whether or not impregnated, coated, covered or laminated: Of man-made filaments."

ISSUE:

What is the classification of the subject Clorox Pine Sol Floor Wipes?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States Annotated (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. When goods cannot be classified solely on the basis of GRI 1 and if the terms of the headings and any relative section or chapter notes do not require otherwise, the remaining GRIs 2 through 6 may be applied.

Additionally, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) are the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

AFR is warranted in this case on the basis that the protestant has raised a prior ruling which classified similar wipes in heading 3401: NY H88948, dated April 15, 2002 (which classified Vileda Exstatic Wet Floor Wipes in subheading 3401.19.0000, HTSUS). See also two rulings which were raised by the Port: NY F88830, dated August 18, 2000, which classified Cotton Tails Baby Wipes in subheading 3401.19.0000, HTSUS; and NY 869568, dated December 18, 1991, which classified Soliben Wipes in subheading 3401.19.0000, HTSUS.)

Note 2 to Chapter 34, HTSUS, states, in pertinent part, "[f]or purposes of heading 3401, the expression 'soap' applies only to soap soluble in water. Soap and the other products of heading 3401 may contain added substances (for example, disinfectants, abrasive powders, filler or medicaments)...."

In this case, the description of the subject wipes seems to meet the terms of Note 2 to Chapter 34, HTSUS. However, we find that testing must be performed to ascertain the specification of the goods' contents. Although the Material Safety Data (MSD) sheets and other safety data information was analyzed by the CBP lab, this information was not sufficient since the ingredients are listed as proprietary. Further, we note that the Port on August 12, 2005 by fax and by CBP Form 28 to the broker and importer requested samples of the wipes along with the cleaning antiseptic/germicide fluid on two occasions, but the samples were never received for analysis.

Although the Port liquidated the merchandise in heading 3402, it is your position that the goods are more properly classifiable in heading 5603. To support this classification, you provide prior ruling letters which classified similar wipes in heading 5603, HTSUS: NY F88311, dated June 20, 2000 (which classified nonwoven "Glass & Surface Cleaner" wipes); NY B86128, dated June 24, 1997 (which classified "Antistat Wet Wipes" in subheading 5603.92.0010); NY 818807, dated February 16, 1996 (which classified nonwoven wet-wipes) and HQ 087194, dated June 13, 1990 (which classified disinfecting cleaning cloths). We refer to Note 1(a) to Chapter 56, which states,

This chapter does not cover: [w]adding felt or nonwovens, impregnated, coated or covered with substances or preparations (for example, perfumes or cosmetics of chapter 33, soaps or detergents of heading 3401...) where the textile material is present merely as a carrying medium.

It is understood that a sample of the subject merchandise is needed in order to determine whether the subject wipes are a spunbound non-woven textile material and whether they are merely a delivery system. However, in this case, no testing could be performed to consider whether heading 3401 was appropriate. Without the testing, we find the subject merchandise is appropriately classified in heading 5603, HTSUS.

HOLDING:

The subject Clorox Pine Sol Floor Wipes are classifiable in heading 5603, HTSUS, which provides for "Nonwovens, whether or not impregnated, coated, covered or laminated: Of man-made filaments," dutiable at FREE. The textile quota category number is 223. Since reclassification of the merchandise as indicated above will result in the same rate of duty as claimed, you are instructed to allow the protest in full.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to 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 in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of 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

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