Revocation of HQ H302153, HQ 088142, HQ 088909, NY PD 816479, NY G83126, NY H86099, NY I83543, NY K82162, NY L86033, NY N033496, NY N044145; Tariff classification of non-slip grip pads

H305115 May 14, 2024 OT:RR:CTF:CPMMA H305115 RRB CATEGORY: Classification TARIFF NO.: 3926.90.99 Mr. Victor Quintana Import Supervisor Mohawk Industries, Inc. 160 S. Industrial Blvd. P.O. Box 12069 Calhoun, GA 30703 RE: Revocation of HQ H302153, HQ 088142, HQ 088909, NY PD 816479, NY G83126, NY H86099, NY I83543, NY K82162, NY L86033, NY N033496, NY N044145; Tariff classification of non-slip grip pads Dear Mr. Quintana: This is to inform you that U.S. Customs and Border Protection (“CBP”) has reconsidered Headquarters Ruling Letter (“HQ”) H302153, dated July 12, 2019, regarding the classification under the Harmonized Tariff Schedule of the United States (“HTSUS”), of non-slip grip pads. After reviewing this ruling in its entirety, we believe that it is in error. For the reasons set forth below, we hereby revoke HQ H302153. For the reasons set forth below, we are also revoking ten other rulings on substantially similar merchandise: HQ 0881421, dated January 18, 1991; HQ 0889092, dated April 22, 1991; New York Ruling Letter (“NY”) PD 8164793, dated December 5, 1 HQ 088142 classified an anti-slip mesh warp knit fabric that is completely encased in PVC in heading 3921, HTSUS. 2 HQ 088909 classified a stay put rug pad made of an open mesh warp knit fabric that is completely covered in PVC in heading 3921, HTSUS. 3 NY PD 816479 classified non-skid fabric covered in PVC in heading 3921, HTSUS. 2 1995; NY G832164, dated October 31, 2000; NY H860995, dated December 14, 2001; NY I835436, dated July 31, 2002; NY K821627, dated January 15, 2004; NY L860338, dated July 20, 2005; NY N0334969, July 18, 2008; and NY N04414510, dated December 4, 2008. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice of the proposed action was published in the Customs Bulletin, Volume 58, No. 14, on April 10, 2024. One comment was received in response to this notice. FACTS: In HQ H302153, we described the product as follows: The non-slip grip pads are made of 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 60 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 non-slip grip pads are classified in heading 3921, HTSUS, as “other plates, sheets, film, foil and strip, of plastics,” in heading 3924, HTSUS, as “tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics,” or in heading 3926, HTSUS, as “other articles of plastics and articles of other materials of headings 3901 to 3914.” 4 NY G83216 classified a non-slip grip liner made of a PVC coated textile with an open-work warp knit construction in heading 3921, HTSUS. 5 NY H86099 classified a grip net shelf lining material consisting of an open work warp knit fabric that has been coated with PVC in heading 3921, HTSUS. 6 NY I83543 classified 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, HTSUS. 7 NY K82162 classified non-skid material consisting of an open mesh fabric that is coated on both sides with PVC in heading 3921, HTSUS. 8 NY L86033 classified anti-skid material consisting of an open mesh fabric coated on both sides with PVC in heading 3921, HTSUS. 9 NY N033496 classified PVC coated anti-skid material composed of an open mesh fabric in heading 3921, HTSUS. 10 NY N044145 classified drawer liners composed of an open mesh fabric and encased on both sides with PVC in heading 3921, HTSUS. 3 LAW AND ANALYSIS: Classification under the HTSUS is governed by the General Rules of Interpretation (“GRI”). GRI 1 provides, in part, that “for legal purposes, classification shall be determined according to 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 may then be applied in order. The 2024 HTSUS provisions under consideration are as follows: 3921 Other plates, sheets, film, foil and strip, of plastics: 3924 Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics: 3926 Other articles of plastics and articles of other materials of headings 3901 to 3914: * * * * 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). * * * * 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). 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.” Thus, the subject merchandise can only be classified in heading 3926, HTSUS, if they are excluded from heading 3921, HTSUS, and heading 3924, HTSUS. The non-slip grip pads in HQ H302153 consist of warp knitted, polyester open mesh fabric coated with foamed PVC. The mesh fabrics include open spaces that are still present following the application of the PVC coating. The largest spaces within the 4 mesh samples are approximately 0.125 inches by 0.125 inches11. Despite the presence of a knitted fabric, CBP correctly noted in HQ H302153 that the non-slip grip pads are not classified as a textile of chapter 59.12 In HQ H302153, CBP classified the non-slip grip pads in heading 3921, HTSUS, because CBP determined that the merchandise were sheets of plastic under the terms of the heading. The term “sheet” is not defined in the text of the HTSUS or in the Explanatory Notes. In HQ H302153, CBP examined various dictionary definitions of the term “sheet” for purposes of heading 3921, HTSUS. For example, HQ H302153 cited to the Merriam-Webster Online Dictionary definition of “sheet” as “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 August 27, 2019). That ruling also cited to definitions of “sheet” that are set forth in the Oxford English Dictionary and the MacMillan Dictionary.13 Relying on dictionary definitions to determine the common and commercial meaning of “sheet,” CBP held that “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.” For the reasons set forth below, we now find this to be in error. While we accept and agree with the above definitions, we find that they were incorrectly applied in HQ H302153. There, CBP stated that “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.” However, it would, in fact, be impossible to do this as the non-slip grip pads consist of areas without surface where there are holes in the open-work knit base fabric and plastic mesh. Upon reexamination of the merchandise, we note that the construction of the mesh is not tight enough to allow one to go from one point to another without leaving the surface. Though the term “sheet” is not defined in the HTSUS or the Explanatory Notes, CBP, the Court of International Trade (“CIT”) and the World Customs Organization (“WCO”) have identified accepted definitions of the term “sheet” in heading 3921, HTSUS. In 3G Mermet Fabric Corp. v. United States, 25 C.I.T. 174, 178; 135 F. Supp. 2d 151, 156 (2001), the CIT defined the term “sheet” in the context of “sheets of plastic” as a “material in the form of a continuous stem covering or coating.” 3G Mermet Fabric Corp. 25 C.I.T. at 178. There, the CIT classified window shade fabrics with a mesh component that was coated with acrylic or PVC plastic in heading 3926, HTSUS, under 11 For comparison to other rulings, this is equivalent to approximately 3.175 mm x 3.175 mm. 12 We note a clerical error in HQ H302153 on page 4, in which CBP excluded the non-slip grip pads from classification in chapter 59 “pursuant to note 2(a)(3) to chapter 53.” Rather, the non-slip grip pads are excluded from classification in chapter 59 pursuant to note 2(a)(3) to chapter 59. 13 In HQ H302153, CBP stated that “[t]he 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); HQ 967346, dated January 25, 2005, which classified extruded polyethylene mesh netting in heading 3926, HTSUS, also relied on the Oxford English Dictionary definition of “sheet.” 5 GRI 3(b) based upon the plastic mesh component imparting the essential character. In defining “sheet” for purposes of classification as a plastic of chapter 39, the court relied on the definition of “sheeting of plastic” in Sarne Handbags Corp. v. United States, 100 F. Supp. 2d 1126, 1136 (CIT 2000). 3G Mermet Fabric Corp. 25 C.I.T. at 177. Moreover, the WCO has determined that articles with holes are excluded from classification in heading 3921, HTSUS. In particular, the Harmonized System Committee of the WCO classified a similar article in heading 3926. The article was described as a flexible reinforcement grid of high-strength polyester fibers woven and covered on all sides with a protective layer of PVC visible to the naked eye, where “each element of the grid takes the form of a narrow fabric made of parallel yarns, with the ‘weft’ inserted at right angles between the yarns of the ‘warp’, forming mesh openings measuring 35 x 40 mm.” See WCO Compendium of Classification Opinions (C.O.) at C.O. 3926.90/9 (2002). In HQ H302153, CBP noted that certain rulings relying on the definition of “sheeting” in Sarne Handbags Corp. classified geotextile mesh material and extruded polypropylene or polyethylene mesh in heading 3926, HTSUS. See HQ 965889, dated March 17, 2003; HQ 966281, dated March 17, 2003; HQ 967325, dated November 8, 2004; HQ 967346, dated January 25, 2005; HQ 967348, dated January 25, 2005; and HQ 967349, dated January 25, 2005. CBP had distinguished the geotextile and extruded plastic mesh items in those rulings from the non-slip grip pads based on the size of the open mesh spaces. For example, in HQ 965889, the size of open spaces in the geotextile mesh varied from 16 mm x 16 mm to 21 mm x 24 mm, while the size of the open spaces in HQ 966281 varied from approximately 0.5 inches to 2 inches x 2 inches. Accordingly, CBP found that because the spaces in the non-slip grip pads were smaller than the spaces in the geotextile and extruded mesh, those rulings classifying geotextile and extruded mesh material in heading 3926, HTSUS, based on Sarne were inapplicable. However, we now find this conclusion to be in error as the construction of the non-slip grip pad surface in HQ H302153 is not tight enough to pass from one point to another without leaving the surface due to the presence of holes in the open-work knit base fabric. Moreover, CBP incorrectly determined that the non-slip grip pads are sheets of plastic based on the size of the mesh openings. While the size of the open mesh spaces in the non-slip grips pads are smaller than the spaces in the merchandise in HQ 967346 and HQ 966281, we have identified other rulings classifying similar grip pads in heading 3926, HTSUS, where the size of the open spaces in the mesh surface was the same size or smaller than those in HQ H302153. For example, in NY N292335, dated December 19, 2017, CBP classified PVC coated debris netting of a non-pile warp knit construction, which had holes measuring 0.125 inches, in heading 3926, HTSUS, rather than as sheets of plastic of heading 3921, HTSUS, even though the holes in the netting were, in fact, the same size or smaller than the holes in the non-slip grip pads in HQ H302153. Thus, CBP inconsistently applied its analysis of sheets of plastic based on the size of mesh openings for purposes of classification in heading 3921, HTSUS. Consequently, CBP incorrectly distinguished HQ 965889, HQ 966281, HQ 967325, and HQ 967346, which relied on the definition of “sheeting” of plastic in 6 Sarne, from the non-slip grip pads in HQ H302153. Therefore, these rulings are, in fact, dispositive of the classification of the subject non-slip grip pads as both sets of merchandise consist of surfaces in which it is not possible to pass from any one point of it to any other without leaving the surface. Accordingly, the non-slip grip pads are not classifiable in heading 3921, HTSUS, as sheets of plastic. We note that HQ 088142, HQ 088909, and NY PD 816479 involved merchandise that is exceedingly similar to the non-slip grip pads in HQ H302153. These rulings were issued prior to Sarne and the WCO’s decision to exclude merchandise with holes from classification in heading 3921, HTSUS. Although these rulings were revoked by operation of law following the Sarne decision, we are including these decisions in the instant revocation to prevent further confusion. Moreover, as NY G83126, NY H86099, NY I83543, NY K82162, NY L86033, NY N033496, and NY N044145 each involved the classification of non-skid/non-slip open mesh material that is similar to the non-slip grip pads in HQ H302153, we are revoking these rulings as well. Noting that the non-slip grip pads are not classifiable in heading 3921, HTSUS, we next determine whether they are classifiable as household articles of plastic under heading 3924, HTSUS. Classification of merchandise under heading 3924, HTSUS, as a household article presumes that it is not more specifically provided for elsewhere in the HTSUS. In fact, most common household articles are provided for more specifically in other headings of the HTSUS. For example, household hand tools such as vegetable peelers are classified as hand tools under heading 8205, HTSUS. See, e.g., HQ 964648, dated March 26, 2001. Here, although the non-slip grip pads are stated to be used under rugs, in the kitchen, bathroom or garage, the merchandise can be used in any setting outside the home as well. The fact that the non-slip grip pads can be used in the home occasionally in itself is not sufficient to warrant its classification as a household article of heading 3924, HTSUS. Therefore, the non-slip grip pads are more specifically provided for outside of heading 3924, HTSUS, as an article of plastic under heading 3926, HTSUS. Based on the foregoing, we find that the non-slip grip pads and similar merchandise in HQ H302153, HQ 088142, HQ 088909, NY PD 816479, NY G83126, NY H86099, NY I835543, NY K82162, NY L86033, NY N033496, and NY N044145 are properly classified in subheading 3926.90.99, HTSUS, as “Other articles of plastics and articles of other materials of heading 3901 to 3914: Other: Other.” As noted above, we received one comment in response to the notice of the proposed revocation. The commenter agrees with classification of the merchandise in NY N044145, NY I83543, NY H86099, NY G83126, PD 816479, HQ 088909, NY N033496, NY L86033, and NY K82162 in heading 3926, HTSUS, as “[o]ther articles of plastics and articles of other materials of headings 3901 to 3914” because those rulings indicate that the non-slip grip pads would be found either in a setting other than a home, or not specify any particular setting where the pads would be found. However, the commenter contends that the merchandise in HQ 088142 and HQ H302153 are described as articles found “specifically (and predominantly, if not solely) in a home”, 7 and should therefore be classified in heading 3924, HTSUS, rather than in heading 3926, HTSUS. The commenter notes that in HQ 088142, “[t]he goods are intended to be used on the bottom or lamps, furniture, and other items to prevent slipping, scratching, etc.” Thus, the commenter asserts that the pads in HQ 088142 are “specifically (predominantly, if not solely) ‘household articles’ rather than merely ‘other articles.” The commenter also notes that in HQ H302153, “[t]here 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.” Thus, the commenter again asserts that this description indicates that such goods are “specifically and predominantly ‘household articles.’” We disagree. Heading 3924, HTSUS, is organized into categories (e.g., tableware and kitchenware) followed by the general phrase “other household articles.” “[W]hen a list of items is followed by a general word or phrase, the rule of ejusdem generis is used to determine the scope of the general word or phrase.” Aves. in Leather, Inc. v. United States, 178 F.3d 1241, 1244 (Fed. Cir. 1999). “In classification cases, ejusdem generis requires that, for any imported merchandise to fall within the scope of the general term or phrase, the merchandise must possess the same essential characteristics or purposes that unite the listed examples preceding the general term or phrase … Thus, under an ejusdem generis analysis, a court must consider the common characteristics or unifying purpose of the listed exemplars in a heading as well as consider the specific primary purpose of the imported merchandise. Classification of imported merchandise under ejusdem generis is appropriate only if the imported merchandise shares the characteristics or purpose and does not have a more specific primary purpose that is inconsistent with the listed exemplars.” Id. The essential characteristics or purposes of the exemplars of EN 39.24 are that they are of plastic, are used in the household, and are reusable. See HQ W968181, dated October 3, 2006. The non-slip grip pads in HQ 088142 and HQ H302153 are not tableware, kitchenware, or a hygienic and toilet article. Thus, we need to determine whether these non-slip grip pads can be classified, ejusdem generis, in heading 3924, HTSUS, under “other household articles.” The primary location of the article alone does not determine its primary function and does not make it classifiable as a household article of heading 3924, HTSUS. EN 39.24 reflects that household articles are utilitarian and decorative in character or function as a receptacle, and are closely associated with household functions and activities such as dustbins and buckets for cleaning, watering cans for watering plants or a garden, and food storage containers to store food products for and in a household. Unlike the exemplars provided as household articles of heading 3924, HTSUS, the sole purpose of the non-slip grip pads in HQ 088142 and HQ H302153 is to protect items placed on top of the pads from slipping or scratching and to provide added cushioning that reduces fatigue. While the non-slip grips in HQ 088142 and HQ H302153 may be used in the household, their uses are not strictly lor even primarily used in the household. They can also be used in an office, garage, or school setting, among others. Such potential uses are not consistent with the narrow uses 8 contemplated by household articles of heading 3924, HTSUS. The fact that the non-slip grip pads in HQ 088142 and HQ H302153 can be used in the home occasionally in itself is not sufficient to warrant its classification as a household article of heading 3924, HTSUS. Thus, they are not ejusdem generis with the “other household article of plastics” exemplars of EN 39.24(C) because even though they are of plastic and are reusable, they are not primarily used in the household. HOLDING: By application of GRIs 1 and 6, the non-slip grip pads are classified in heading 3926, HTSUS, specifically under subheading 3926.99.99, HTSUS, which provides for “Other articles of plastics and articles of other materials of heading 3901 to 3914: Other: Other[.]” The 2024 column one, general rate of duty is 5.3% ad valorem. EFFECT ON OTHER RULINGS: HQ H302153, dated July 12, 2018; HQ 088142, dated January 18, 1991; HQ 088909, dated, April 22, 1991; NY PD 816479, dated December 5, 1995; NY G83216, dated October 31, 2000; NY H86099, dated December 14, 2001; NY I83543, dated July 31, 2002; NY K82162, dated January 15, 2004; NY L86033, dated September 20, 2005; NY N033496, July 18, 2008; and NY N044145, dated December 4, 2008, are hereby revoked. This ruling will become effective 60 days from the date of publication in the Customs Bulletin. Sincerely, Yuliya A. Gulis, Director Commercial and Trade Facilitation Division Cc: Mr. Roger T. Sithithum EIC, Inc. 3900 N. Troy Street Chicago, IL 60618 Ms. Elaine G. Ponce Homemaker Industries, Inc. 295 5th Avenue New York, NY 10016 9 Warren Eslinger The Hungarian Spirit, Inc. 6495 Happy Canyon Road Unit 665 Denver, CO 80237 Ms. Sandra Keyser Con-Tact Brand 1 Mill Street Fort Edward, NY 12828-1727 Ms. Amanda B. Key Beijing Trade Exchange, Inc. 1200 Park Avenue Hoboken, NJ 07030 Mr. Martin Kirby Capitol USA, LLC 300 Cross Plains Blvd. P.O. Box 2023 Dalton, GA 30722 Michael Brooks The Square Yard Inc. 5150 S. Decatur Las Vegas, NV 8 9118 Ms. Francine Marcoux Hampton Direct Incorporated 350 Pioneer Drive P.O. Box 1199 Williston, VT 05495 Mr. Troy D. Crago Atico International USA, Inc. 501 South Andrews Avenue Ft. Lauderdale, FL 33301 Ms. Silke Rees Waterloo Industries, Inc. 137 Forest Hill Avenue Oak Creek, WI 53154