No Job Name

U.S. Customs and Border Protection

◆

GENERAL NOTICE

19 CFR PART 177

PROPOSED REVOCATION OF ONE RULING LETTER,

PROPOSED MODIFICATION OF ONE RULING LETTER,

AND PROPOSED REVOCATION OF TREATMENT

RELATING TO THE CLASSIFICATION OF DVDS AND

BLU-RAY DISCS

AGENCY: U.S. Customs and Border Protection (“CBP”), Depart-

ment of Homeland Security.

ACTION: Notice of proposed revocation of one ruling letter, pro-

posed modification of one ruling letter, and proposed revocation of

treatment relating to the classification of DVDs and Blu-ray discs.

SUMMARY: Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C.

1625 (c)), as amended by section 623 of Title VI (Customs Modern-

ization) of the North American Free Trade Agreement Implementa-

tion Act (Pub. L. 103–182, 107 Stat. 2057), this notice advises inter-

ested parties that CBP proposes to revoke one ruling letter and

modify one ruling letter concerning the classification of DVDs and

Blu-ray discs under the Harmonized Tariff Schedule of the United

States (HTSUS). Similarly, CBP intends to revoke any treatment

previously accorded by CBP to substantially identical transactions.

Comments are invited on the correctness of the proposed actions.

DATES: Comments must be received on or before February 2,

2015.

ADDRESSES: Written comments are to be addressed to U.S.

Customs and Border Protection, Office of International Trade,

Regulation and Rulings, Attention: Trade and Commercial

Regulations Branch, 90 K Street, N.E.-10th Floor, Washington, DC

20229–1179. Comments submitted may be inspected at 799 9th St.

N.W. during regular business hours. Arrangements to inspect

submitted comments should be made in advance by calling Mr.

Joseph Clark at (202) 325–0118.

FOR FURTHER INFORMATION CONTACT: Tamar Anolic,

Tariff Classification and Marking Branch: (202) 325–0036.

SUPPLEMENTARY INFORMATION:

Background

On December 8, 1993, Title VI (Customs Modernization), of the

North American Free Trade Agreement Implementation Act (Pub. L.

103–182, 107 Stat. 2057) (hereinafter “Title VI”), became effective.

Title VI amended many sections of the Tariff Act of 1930, as amended,

and related laws. Two new concepts which emerge from the law are

“informed compliance” and “shared responsibility.” These concepts

are premised on the idea that in order to maximize voluntary com-

pliance with customs laws and regulations, the trade community

needs to be clearly and completely informed of its legal obligations.

Accordingly, the law imposes a greater obligation on CBP to provide

the public with improved information concerning the trade commu-

nity’s responsibilities and rights under the customs and related laws.

In addition, both the trade and CBP share responsibility in carrying

out import requirements. For example, under section 484 of the Tariff

Act of 1930, as amended (19 U.S.C. §1484), the importer of record is

responsible for using reasonable care to enter, classify and value

imported merchandise, and provide any other information necessary

to enable CBP to properly assess duties, collect accurate statistics and

determine whether any other applicable legal requirement is met.

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 Moderniza-

tion) of the North American Free Trade Agreement Implementation

Act (Pub. L. 103–182, 107 Stat. 2057), this notice advises interested

parties that CBP proposes to revoke one ruling letter and modify one

ruling letter pertaining to the classification of DVDs and Blu-ray

discs. Although in this notice CBP is specifically referring to New

York Ruling (“NY”) N058455, dated April 29, 2009 (Attachment A),

and HQ H083275, dated June 17, 2010 (Attachment B), this notice

covers any rulings on this merchandise which may exist but have not

been specifically identified. CBP has undertaken reasonable efforts to

search existing data bases for rulings in addition to the one identified.

No further rulings have been found. This notice will cover any rulings

on this merchandise that may exist but have not been specifically

identified. Any party who has received an interpretive ruling or de-

cision (i.e., ruling letter, internal advice memorandum or decision or

protest review decision) on the merchandise subject to this notice,

should advise CBP during this notice period.

CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO.1,JANUARY 1, 2015

Similarly, pursuant to section 625(c)(2), Tariff Act of 1930 (19

U.S.C. 1625(c)(2)), as amended by section 623 of Title VI, CBP pro-

poses to revoke any treatment previously accorded by CBP to sub-

stantially identical transactions. Any person involved in substan-

tially identical transactions should advise CBP during this notice

period. An importer’s failure to advise CBP of substantially identical

transactions or of a specific ruling not identified in this notice, may

raise issues of reasonable care on the part of the importer or his

agents for importations of merchandise subsequent to this notice.

In NY N058455, CBP classified Blu-ray discs and DVDs in sub-

heading 8523.49.50, HTSUS, as other types of optical media. We now

believe that they meet the definition of “proprietary format recorded

discs” of subheading 8523.49.40, HTSUS. In HQ H083275, CBP prop-

erly classified media optical discs in as “proprietary format recorded

discs” subheading 8523.49.40, HTSUS, but failed to set forth a defi-

nition of that term. We now modify HQ H083275 to reflect our new

legal analysis.

Pursuant to 19 U.S.C. 1625(c)(1), CBP proposes to revoke NY

N058455 and modify HQ H083275, and any other ruling not specifi-

cally identified, pursuant to the analysis set forth in Proposed Head-

quarters Ruling Letter H236026 (see Attachment “C” to this docu-

ment). Additionally, pursuant to 19 U.S.C. 1625(c)(2), CBP proposes

to revoke any treatment previously accorded by CBP to substantially

identical transactions. Before taking this action, consideration will be

given to any written comments timely received.

Dated: December 15, 2014

YLES B. HARMON,

Director

Commercial and Trade Facilitation Division

Attachments

CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO.1,JANUARY 1, 2015

ATTACHMENT A

N058455

April 29, 2009

CLA-2–85:OT:RR:E:NC:1:108

CATEGORY: Classification

TARIFF NO.: 8523.40.5000

MR.CHINGYU TSOI

8840 COSTA VERDE BLVD.

PT. 3356

SAN DIEGO, CA 92122

RE: The tariff classification of Blu-ray disc movies from an unknown

country.

EAR MR.TSOI:

In your letter dated April 22, 2009, you requested a tariff classification

ruling.

The merchandise under consideration is Blu-ray disc movies, which are

referred to as the “Planet Earth: Complete BBC series [Blu-ray].” Blu-ray

discs are optical disc storage mediums that use high-definition video. Each

optical disc, being a nature/wildlife movie, covers a specific geographical

region and/or wildlife habitat (mountains, caves, deserts, shallow seas, sea-

sonal forests, etcetera).

In your letter, you express the opinion that these Blu-ray discs are properly

classified under subheading 8523.40.4000, which provides for Optical media:

Other: For reproducing representations of instructions, data, sound, and

image, recorded in a machine readable binary form, and capable of being

manipulated or providing interactivity to a user, by means of an automatic

data processing machine; proprietary format recorded discs. Since the inher-

ent characteristics within these discs do not provide interactivity and cannot

be manipulated, classification under this subheading is inapplicable.

The applicable subheading for the Blu-ray disc movies will be

8523.40.5000, Harmonized Tariff Schedule of the United States (HTSUS),

which provides for Discs, tapes, solid-state non-volatile storage devices,

“smart cards” and other media for the recording of sound or of other phenom-

ena, whether or not recorded, including matrices and masters for the pro-

duction of discs, but excluding products of Chapter 37: Optical media: Re-

corded optical media: Other: Other. The rate of duty will be 2.7 percent ad

valorem.

Duty rates are provided for your convenience and are subject to change.

The text of the most recent HTSUS and the accompanying duty rates are

provided on World Wide Web at http://www.usitc.gov/tata/hts/.

This ruling is being issued under the provisions of Part 177 of the Customs

Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be

provided with the entry documents filed at the time this merchandise is

imported. If you have any questions regarding the ruling, contact National

Import Specialist Lisa Cariello at (646) 733–3014.

Sincerely,

OBERT B. SWIERUPSKI

Director

National Commodity Specialist Division

CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO.1,JANUARY 1, 2015

ATTACHMENT B

HQ H083275

June 17, 2010

CLA-2:OT:RR:CTF:TCM H083275 TNA

CATEGORY: Classification

TARIFF NO.: 8523.40.40

R.STEVEN W. B AKER

250 BEL MARTIN KEYS BLVD,SUITE 8–6

OVATO, CA 94949–5707

RE: Modification of NY M86614; Classification of media optical discs

EAR MR.BAKER:

This letter concerns New York Ruling Letter (“NY”) M86614, which the

National Commodity Specialist Division of U.S. Customs and Border Protec-

tion (“CBP”) issued to you on behalf of your client, Nintendo of America, Inc.,

on October 11, 2006. In NY M86614, a Nintendo Wii video game system,

wireless controllers and “proprietary media optical disks” were classified in

heading 9504, Harmonized Tariff Schedule of the United States (HTSUS), as

a video game, its parts and accessories, “whether imported separately or

together.” We have reconsidered this ruling and now believe that it is incor-

rect with respect to the classification of the media optical discs when im-

ported separately.

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, notice proposing to modify NY M86614

was published on March 31, 2010, in Volume 44, Number 14, of the Customs

Bulletin. CBP received one comment in response to this notice, which is

addressed in the ruling.

FACTS:

The optical discs at issue are slightly less than 5 inches in diameter and are

produced using single-layer technology. They contain proprietary Wii soft-

ware and can only be used with Wii game consoles and not with personal

computers (“PCs”) or other gaming machines.

ISSUE:

Whether optical discs that contain video game software should be classified

under heading 8523, HTSUS, as optical discs, or under heading 9504, as

parts and accessories of video games?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules

of Interpretation (GRI). GRI 1 provides that classification shall be deter-

mined according to the terms of the headings of the tariff schedule 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.

The HTSUS headings at issue are as follows:

8523 Discs, tapes, solid-state non-volatile storage devices, “smart cards”

and other media for the recording of sound or of other phenomena,

CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO.1,JANUARY 1, 2015

whether or not recorded, including matrices and masters for the pro-

duction of discs, but excluding products of Chapter 37:

9504 Articles for arcade, table or parlor games, including pinball machines,

bagatelle, billiards and special tables for casino games; automatic

bowling alley equipment; parts and accessories thereof:

Note 3 to Chapter 95, HTSUS, states, in pertinent part:

Subject to note 1 above, parts and accessories which are suitable for use

solely or principally with articles of this chapter are to be classified with

those articles.

The Harmonized Commodity Description and Coding System Explanatory

Notes (ENs) constitute the official interpretation of the Harmonized System.

While not legally binding, and therefore not dispositive, the ENs provide a

commentary on the scope of each heading of the Harmonized System at the

international level. CBP believes the ENs should always be consulted. See

T.D. 89–80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The EN to heading 8523, HTSUS, states, in pertinent part:

This heading covers different types of media, whether or not recorded, for

the recording of sound or of other phenomena (e.g., numerical data; text;

images, video or other graphical data; software). Such media are gener-

ally inserted into or removed from recording or reading apparatus and

may be transferred from one recording or reading apparatus to another.

In particular, this heading covers:

(B) OPTICAL MEDIA

Products of this group are generally in the form of discs made of glass,

metal or plastics with one or more light-reflective layers. Any data (sound

or other phenomena) stored on such discs are read by means of a laser

beam. This group includes recorded discs and unrecorded discs whether

or not rewritable.

This group includes, for example, compact discs (e.g., COs, VCOs, CO-

ROMs, CO-RAMs), digital versatile discs (DVDs).

The EN to heading 9504, HTSUS, states, in pertinent part, that:

This heading includes:

(2) Video game consoles and other electronic games which can be used

with a television receiver, a video monitor or an automatic data process-

ing machine monitor ...

The heading also includes parts and accessories of video game consoles

(for example cases, game cartridges, game controllers, steering wheels),

provided they fulfil the conditions of Note 3 to this Chapter.

The heading excludes:

(b) Optical discs recorded with game software and used solely with a game

machine of this heading (heading 85.23).

Heading 9504, HTSUS, provides for, among other things, parts and acces-

sories of video games. Note 3 to Chapter 95, HTSUS, requires that parts and

accessories which are suitable for use solely or principally with articles of the

chapter are to be classified with those articles. The Court of Appeals for the

CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO.1,JANUARY 1, 2015

Federal Circuit has found that “an imported item dedicated solely for used

with another article is a ’part’ of that article within the meaning of the

HTSUS.” Bauerhin Technologies v. United States (“Bauerhin”), 110 F.3d 774,

779 (citations omitted), (Fed. Cir. 1997). An accessory is a subordinate article

that bears “a direct relationship to the primary article that it accessorizes.”

Rollerblade Inc. v. United States (“Rollerblade”), 282 F.3d 1349, 1352 (cita-

tions omitted) (Fed. Cir. 2002), citing with approval the Court of Interna-

tional Trade’s consultation of the common (dictionary) meaning of the term

“accessory.” See id.; 116 F. Supp. 2d 1247, 1253 (Ct. Int’l Trade 2000).

In the case of optical discs containing video game software, the good to be

classified is the disc itself and not the software recorded on it. There is

nothing inherent in an optical disc that makes it a part or accessory of a game

system. Optical discs are not solely used with video game consoles and do not

bear a direct relationship to them. Such discs can also be used with, for

example, CD players, DVD players, and ADP machines. As such, we find that

they are not provided for in heading 9504, HTSUS, and that Note 3 to

Chapter 95, HTSUS, is not applicable to their classification. This finding is

supported by EN 95.04 2(b), which explains that optical discs recorded with

game software and used solely with a game machine of heading 9504, HT-

SUS, are classified in heading 8523, HTSUS. The ENs are especially persua-

sive “when they specifically include or exclude an item from a tariff heading.”

H.I.M./Fathom. Inc. v. United States, 981 F. Supp. 610, 613 (1997).

Heading 8523, HTSUS, provides eo nomine for discs for the recording of

sound and other phenomena. The discs at issue here have software recorded

on them. Thus, they are described by heading 8523, HTSUS, and must be

classified there.

CBP received one comment in response to the proposed modification. The

commenter argues that, contrary to CBP’s position, anyone who purchases

the subject optical discs buys them, not as optical discs, but for the game

software programmed on it. Citing to Data General v. U.S., 4 CIT 182 (1982)

and HQ 651011, dated September 22, 1998, the commenter argues that the

programming of electronic media has long been held to substantially trans-

form the blank media into an article with a specific function. In response, we

note that Data General and HQ 651011 are marking cases that discuss

whether the programming of media optical discs is a substantial transforma-

tion for the purposes of country of origin marking under 19 C.F.R. §10.14(b),

the precursor to 19 C.F.R. Part 134, the current country of origin marking

regulations. The rules for country of origin marking do not apply to the

classification of merchandise.

The commenter also noted that CBP has previously taken up the issue of

reclassifying video game software from heading 9504, HTSUS, as parts of

video games, to heading 8523, HTSUS, as media optical discs in HQ 965759,

dated August 30, 2002. There, CBP published a notice in Customs Bulletin

Volume 36, No. 33, on August 14, 2002 proposing to modify NY 813932, which

classified a memory card that plugs into the front of the PlayStation in

heading 9504, HTSUS, in order to reclassify the memory card in heading

8523, HTSUS. The proposed modification never went into final form, how-

ever, and NY 813932 remained unchanged. The commenter argues that this

outcome speaks against reclassification of the subject media optical discs. In

CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO.1,JANUARY 1, 2015

response, we note that the merchandise at issue in proposed HQ 965759 was

a memory card for video game machines, distinguishable in form from the

subject optical discs, which are provided for eo nomine in heading 8523,

HTSUS.

HOLDING:

Under the authority of GRI 1, the media optical discs are provided for in

heading 8523, HTSUS. Specifically, they are classified in subheading

8523.40.40, HTSUS, which provides for “Discs, tapes, solid-state non-volatile

storage devices, ‘smart cards’ and other media for the recording of sound or of

other phenomena, whether or not recorded ... : Optical media: Recorded

optical media: Other: ... proprietary format recorded discs.” The 2010 column

one, general rate of duty is free.

Duty rates are provided for your convenience and are subject to change.

The text of the most recent HTSUS and the accompanying duty rates are

provided on the Internet at www.usitc.gov/tata/hts/.

EFFECT ON OTHER RULINGS:

NY M86614, dated October 11, 2006, is modified with respect to the clas-

sification of optical discs when imported separately. The classification of the

other items described therein remains unchanged.

Sincerely,

YLES B. HARMON,

Director

Commercial and Trade Facilitation Division

CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO.1,JANUARY 1, 2015

ATTACHMENT C

HQ H236026

CLA-2 OT:RR:CTF:TCM H236026 TNA

CATEGORY: Classification

TARIFF NO.: 8523.49.40

R.CHINGYU TSOI

8840 COSTA VERDE BLVD.

PT. 3356

AN DIEGO, CA 92122

Re: Revocation of NY N058455; Modification of HQ H083275; Classification

of DVDs and Blu-Ray Discs

EAR MR.TSOI:

This letter is in reference to New York Ruling Letter (“NY”) N058455,

issued to you on April 29, 2009, concerning the tariff classification of blu-ray

discs with movies on them. There, U.S. Customs and Border Protection

(“CBP”) classified the merchandise under subheading 8523.49.50, Harmo-

nized Tariff Schedule of the United States (“HTSUS”), as “Discs, tapes,

solid-state nonvolatile storage devices, “smart cards” and other media for the

recording of sound or of other phenomena, whether or not recorded, including

matrices and masters for the production of discs, but excluding products of

Chapter 37: Optical media: Recorded optical media: Other: Other.”

We have

reviewed this ruling and found it to be in error.

This ruling letter also concerns HQ H083275, dated June 17, 2010, classi-

fying similar merchandise in subheading 8523.49.40, HTSUS, of the 2010

tariff, as other recorded media capable of being manipulated by an ADP

machine. Although we adhere to the conclusion set forth in HQ H083275, we

have reviewed this ruling and have found its analysis to be incorrect. For the

reasons set forth below, we hereby revoke NY N058455 and modify HQ

H083275.

FACTS:

NY N058455 classified Blu-ray discs that were prerecorded with movies on

them in digital form. A Blu-ray disc is an optical disc storage medium. Blu-ray

discs are plastic discs that are 120 mm in diameter and 1.2 mm thick, the

same size as DVDs and COs. The format of Blu-ray discs allows their movies

to be played on both televisions and computers.

Blu-ray discs also contain a comprehensive content management system

designed to protect the material on the discs from piracy-i.e., the sale of

unauthorized copies of pre-recorded media. This system contains three pri-

mary components: Advanced Access Content System (AACS); “BD Plus”; and

ROM Mark. AACS allows the user to manage copies in an authorized and

secure manner. ROM Mark embeds a unique and undetectable identifier in

prerecorded BD-ROM media such as movies, music and games. The ROM

Mark is invisible to consumers and can only be mastered with equipment

available to licensed BD-ROM manufacturers, essentially preventing unau-

We note that NY N058455 classified its merchandise in subheading 8523.40.50, HTSUS.

Subheadings 8523.40.40 and 8523.40.50 have become subheadings 8523.49.40 and

8523.49.50, respectively, under the 2012 (and 2014) tariff. This ruling will apply the 2014

subheadings throughout.

CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO.1,JANUARY 1, 2015

thorized copies of a disc. “BD Plus”, sometimes called “BD+”, is a Blu-ray-

specific content protection. Instead of preventing the discs themselves from

being copied, it checks the player to see if it has been hacked and then locks

down the media.

Content that is recorded on DVDs, such as movies, contain a similar system

of content protection as do the subject Blu-ray discs. In addition, movies that

are recorded on the subject DVDs are done so within a restricted system of

licensing and authorization. Companies that seek to duplicate these movies,

as well as manufacturers that produce conforming movie players that de-

scramble the encrypted data file content, are required to obtain a license to

the material. The DVDs that are duplicated in this manner are protected

from further duplication by a copy prevention system encoded in the data,

which protects the intellectual property rights of the studios. Furthermore,

DVDs, like Blu-ray discs, are encoded in such a way so that they can only be

played in certain regions of the world, as both DVDs and Blu-ray discs are

formatted differently for different regions. This encryption and regional for-

matting have become standard features on DVDs, and are now present

whether the DVDs contain motion pictures or the types of instructional

videos contained on the subject DVDs.

NY N058455 classified the subject merchandise in subheading 8523.49.50,

HTSUS, as “Discs, tapes, solid-state non-volatile storage devices, “smart

cards” and other media for the recording of sound or of other phenomena,

whether or not recorded, including matrices and masters for the production

of discs, but excluding products of Chapter 37: Optical media: Recorded

optical media: Other: Other.” HQ H083275 classified media optical discs for

Wii machines that contain Wii software in subheading 8523.49.40, HTSUS,

which provides for: “Discs, tapes, solid-state non-volatile storage devices,

‘smart cards’ and other media for the recording of sound or of other phenom-

ena, whether or not recorded ... : Optical media: Recorded optical media:

Other: ... proprietary format recorded discs.”

ISSUE:

Do the subject Blu-ray discs and DVDs constitute proprietary format re-

corded discs of subheading 8523.49.40, HTSUS?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States

(HTSUS) is made in accordance with the General Rules of Interpretation

(GRI). GRI 1 provides that the classification of goods shall be determined

according to the terms of the headings of the tariff schedule 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 GRI may then be applied. GRI 6 requires

that the classification of goods in the subheadings of headings shall be

determined according to the terms of those subheadings, any related sub-

heading notes and, mutatis mutandis, to the GRIs 1 through 5.

CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO.1,JANUARY 1, 2015

The HTSUS provisions under consideration are as follows:

8523 Discs, tapes, solid-state non-volatile storage devices, “smart-

o“smarto“smarto“smarto“smart cards” and other media for the re-

cording of sound or of other phenomena, whether or not recorded,

including matrices and masters for the production of discs, but

excluding products of Chapter 37

8523.49 Optical media:

Recorded optical media:

Other:

8523.49.40 For reproducing representations of instruc-

tions, data, sound, and image, recorded in

a machine readable binary form, and ca-

pable of being manipulated or providing

interactivity to a user, by means of an au-

tomatic data processing machine; propri-

etary format recorded discs

8523.49.50 Other

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 HTSUS and are generally indicative of the

proper interpretation of these headings. See T.D. 89–80, 54 Fed. Reg. 35127

(Aug. 23, 1989).

It is not in dispute that the subject merchandise is classified in heading

8523, HTSUS, as discs for the recording of sound or of other phenomena,

excluding products of Chapter 37, HTSUS. It is also not in dispute that the

subject merchandise is described by the terms of subheading 8523.49, HT-

SUS, as other optical media. Rather, the dispute is at the eight-digit level.

While we agree with the reasoning in HQ 968124, dated June 19, 2006,

declining to classify such discs in subheading 8523.49.40, HTSUS, as “ca-

pable of being manipulated by an ADP machine,” we neglected to analyze

possible classification, in any of CBP’s rulings of substantially similar mer-

chandise, as “proprietary format discs” of the same subheading.

The term “proprietary format” is not defined in the tariff or the ENs. As a

result, CBP is permitted to consult dictionaries and other lexicographic ma-

terials to determine the term’s common meaning. See, e.g., Lanza, Inc. v.

United States, 46 F.3d 1098 (Fed. Cir. 1995). The term in question is then

construed in accordance with its common and commercial meanings, which

are presumed to be the same. See, e.g., Nippon Kogasku (USA). Inc. v. United

States, 69 CCPA 89, 673 F.2d 380 (1982); Toyota Motor Sales. Inc. v. United

States, 7 C.I.T. 178 (Ct. Int’l Trade 1984); Carl Zeiss. Inc. v. United States, 195

F.3d 1375 (Fed. Cir. 1999); Lanza, 46 F.3d 1098.

Technical sources state that:

a file format is proprietary if the mode of presentation of its data is

opaque and its specification is not publicly available. Proprietary formats

are developed by software companies in order to encode data produced by

their applications: only the software produced by a company who owns

the specification of the file format will be able to read correctly and

completely the data contained in this file. Proprietary formats can be

CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO.1,JANUARY 1, 2015

further protected through the use of patents and the owner of the patent

can ask for royalties for the use or implementation of the forms in

third-party’s software.

See www.openformats.org/en1.

Other lexicographic sources note that:

a file format defines the structure and type of data stored in a file ... A file

format also defines whether the data is stored in a plain text or binary

format. ... Some file formats are proprietary, while others are universal, or

open formats. Proprietary file formats can only be opened by one or more

related programs. For example, a compressed StuffIt X (.SITX) archive

can only be opened by StuffIt Deluxe or StuffIt Expander. If you try to

open a StuffIt X archive with WinZip or another file decompression tool,

the file will not be recognized. Conversely, open file formats are publicly

available and are recognized by multiple programs. For example, StuffIt

Deluxe can also save compressed archives in a standard zipped (.ZIP)

format, which can be opened by nearly all decompression utilities.

See www.techterms.com/definition/file_format. See also http://

warp.povusers.org/grrr/proprietaryvideoformats.html (“closed proprietary

format... means that officially they can only be played with one player (pro-

vided by the owner of the format). There exist other players which also can

play them, but only using third-party hacks.”);

http://en.wikipedia.org/wiki/Proprietary_format (“A proprietary format is a

file format of a company, organization, or individual that contains data that

is ordered and stored according to a particular encoding-scheme, designed by

the company or organization to be secret, such that the decoding and inter-

pretation of this stored data is only easily accomplished with particular

software or hardware that the company itself has developed. The specifica-

tion of the data encoding format is not released, or underlies non-disclosure

agreements.”)

Furthermore, while courts have not examined this issue in the context of

tariff classification, courts that have examined DVDs in copyright cases have

studied the factors that make them proprietary format. Universal City Stu-

dios v. Reimerdes, 111 F. Supp. 2d 294 (S.D. N.Y. 2000), for example, involved

the decryption of DVDs with movies on them that are substantially the same

merchandise at issue here. See Universal City Studios, 111 F.Supp.2d 294,

303–304. There, the court noted that the DVDs at issue were five-inch wide

disks capable of storing more than 4.7 GB of data, whose relevant application

to this case was that they were used to hold full-length motion pictures in

digital form. ID. at 307. In addition, they were protected by CSS, an encryp-

tion program that involved two layers. First, CSS encrypted the digital sound

and graphics files on a DVD that, together, constituted a motion picture; this

encryption was according to a specific encryption algorithm. Secondly, a

CSS-protected DVD can only be decrypted by an appropriate decryption

algorithm that employs a series of keys stored both on the DVD and the DVD

player. Thus, only players and drives containing the appropriate keys are

able to decrypt DVD files and thereby play movies stored on DVDs. Id at

309–310. The technology necessary to configure DVD players and drives to

CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO.1,JANUARY 1, 2015

play CSS-protected DVDs must be licensed to manufacturers before they can

produce compliant DVD players and drives; hundreds of manufacturers in

the United States and around the world have received this license. Id. at 308.

Hence, “proprietary format” is encrypted in such a way that it can only read

data if the devices with which the media are used contain a decryption

algorithm that is not publicly available. We note that the question of whether

merchandise is “proprietary format” is not necessarily tied to the content of

the merchandise, which, like the movies on the subject DVDs and Blu-Ray

discs, can be copyrighted. Copyright is a form of content protection, and the

tariff term at issue is “proprietary format” rather than “proprietary content.”

This characterization of “proprietary format” is consistent with descrip-

tions found in international agreements on similar merchandise. The Minis-

terial Declaration on Trade in Information Technology Products (“ITA”),

which was concluded in December 1996 and to which the U.S. is a party,

states that specific products are covered by this agreement, wherever they

are classified in the HTS. This list includes “proprietary format storage

devices, including media therefore for automatic data processing machines,

with or without removable media and whether magnetic, optical or other

technology, including Bernouli Box, Syquest, or Zipdrive cartridge storage

units.” See Ministerial Declaration on Trade in Information Technology Prod-

ucts, December 1996, at Annex B. The Bernouli Box, Syquest, or Zipdrive, all

technologies that were prevalent at the time this agreement was signed, are

storage devices whose data is stored and read in a certain way that can only

be read by devices that specifically contained the algorithm to decode the

data. This decoding ability was unique to these devices and therefore was not

publicly available.

In the present case, the subject DVDs and Blu-ray discs contain data in the

form of full-length feature films, which is encrypted in such a manner that

the DVDs can only be played by a DVD player, computer, or Blu-ray player

that contains the decryption algorithm to decode the data. These machines

must be specifically encoded so as to be able to read the data properly. In fact,

Blu-Ray discs can only be read by a Blu-Ray player. Thus, many devices, such

as Wii stations or X-boxes, cannot read these discs because they lack the

decryption algorithm for both BluRay discs and encoded DVDs. Even most

personal computers cannot play a Bluray disc without special software being

installed. Furthermore, the encryption system is such that it is region-

specific. As such, DVDs and Blu-ray discs that are formatted for use in North

America could not be played in other regions of the world, as the encryption

system differs abroad. DVD and Blu-ray disc players are similarly formatted

with region-specific decryption algorithms whose manufacturers must be

licensed in order to produce players with the algorithm on them. As a result,

we find that the subject DVDs and Blu-ray discs are “proprietary format

recorded discs” within the meaning of subheading 8523.49.40, HTSUS. This

conclusion is consistent with Universal City Studios, supra.

These DVDs and Blu-Ray discs are in contrast to the instructional DVDs of

rulings such as HQ 968124, NY N060016, dated May 20, 2009, NY N030310,

dated July 9, 2008, NY N016372, dated September 12, 2007, NY N065586,

dated July 15, 2009, and NY N075356, dated October 2, 2009. As imported,

these instructional DVDs were not encrypted and could be played by com-

puters and other media players regardless of whether those players con-

tained a licensed decryption algorithm. As a result, we distinguish HQ

CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO.1,JANUARY 1, 2015

968124, NY N060016, NY N030310, NY N016372, NY N065586, and NY

N075356 on this basis. The merchandise of these rulings were properly

classified in subheading 8523.49.50, HTSUS, as other recorded optical media.

Lastly, HQ H083275 classified media optical discs containing Wii software

that could only be used with Wii game consoles and not with PCs or other

gaming machines as proprietary format discs of subheading 8523.49.40,

HTSUS. While we affirm this classification, we modify the ruling’s reasoning.

In HQ H083275, we explained why optical discs containing proprietary soft-

ware were classified in heading 8523, HTSUS. However, we did not explain

why, pursuant to HQ 968124, the discs did not meet the definition of “inter-

activity” and “capable of being manipulated” as those terms appear in sub-

heading 8523.49.40, HTSUS. Applying the reasoning in HQ 968124, we now

find that the media optical discs of HQ H083275 do not meet these terms for

the same reasons that the DVDs and Blu-ray discs discussed above do not

meet them. Furthermore, as stated in HQ H083275, and for the same reasons

as the DVDs and Blu-ray discs discussed above meet these definitions, the

subject media optical discs meet the definition of the term “proprietary” of

subheading 8523.49.40, HTSUS.

HOLDING:

By application of GRI 1, the subject DVDs, Blu-ray discs, and media optical

discs with Wii software are classified under heading 8523, HTSUS. They are

specifically provided for under subheading 8523.49.40, HTSUS, which pro-

vides for: “Discs, tapes, solid-state non-volatile storage devices, “smart cards”

and other media for the recording of sound or of other phenomena, whether

or not recorded, including matrices and masters for the production of discs,

but excluding products of Chapter 37: Optical media: Recorded optical media:

Other: ... proprietary format recorded discs.” The general, column one, rate of

duty is free.

Duty rates are provided for your convenience and are subject to change.

The text of the most recent HTSUS and the accompanying duty rates are

provided on the internet at www.usitc.gov/tata/hts/.

EFFECT ON OTHER RULINGS:

NY N058455 is REVOKED.

HQ H083275 is MODIFIED with respect to its analysis, while the classi-

fication of its merchandise remains the same.

Sincerely,

YLES B. HARMON,

Director

Commercial and Trade Facilitation Division

CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO.1,JANUARY 1, 2015

GENERAL NOTICE

19 CFR PART 177

PROPOSED MODIFICATION OF A RULING LETTER AND

REVOCATION OF TREATMENT RELATING TO THE

TARIFF CLASSIFICATION OF A TEXTILE SPONGE

CONTAINING TALC

AGENCY: U.S. Customs and Border Protection, Department of

Homeland Security.

ACTION: Notice of proposed modification of a ruling letter and

treatment relating to the tariff classification of a textile sponge con-

taining talc.

SUMMARY: Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C.

1625(c)), as amended by section 623 of Title VI (Customs Moderniza-

tion) of the North American Free Trade Agreement Implementation

Act (Pub. L. 103·182, 107 Stat. 2057), this notice advises interested

parties that CBP intends to modify a ruling concerning the tariff

classification of a regenerated cellulose sponge that contains talc on

its non·scratch woven cloth side. Similarly, CBP intends to revoke any

treatment previously accorded by CBP to substantially identical

transactions. Comments are invited on the correctness of the pro-

posed actions.

DATES: Comments must be received on or before February 2,

2015.

ADDRESSES: Written comments are to be addressed to the U.S.

Customs and Border Protection, Office of International Trade,

Regulations and Rulings, Attention: Trade and Commercial

Regulations Branch, 90 K Street, N.E. 10th Floor, Washington,

D.C. 20229–1177. Submitted comments may be inspected at the

address stated above during regular business hours. Arrangements

to inspect submitted comments should be made in advance by

calling Mr. Joseph Clark at (202) 325–1008.

FOR FURTHER INFORMATION CONTACT: Nerissa Hamilton-

vom Baur, Tariff Classification & Marking Branch, (202) 325–0104.

SUPPLEMENTARY INFORMATION:

BACKGROUND

On December 8, 1993, Title VI, (Customs Modernization), of the

North American Free Trade Agreement Implementation Act (Pub. L.

CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO.1,JANUARY 1, 2015

103–182, 107 Stat. 2057) (hereinafter ’’Title VI”), became effective.

Title VI amended many sections of the Tariff Act of 1930, as amended,

and related laws. Two new concepts which emerge from the law are

“informed compliance” and “shared responsibility.” These con-

cepts are premised on the idea that in order to maximize voluntary

compliance with customs laws and regulations, the trade community

needs to be clearly and completely informed of its legal obligations.

Accordingly, the law imposes a greater obligation on CBP to provide

the public with improved information concerning the trade commu-

nity’s responsibilities and rights under the customs and related laws.

In addition, both the trade and CBP share responsibility on carrying

out import requirements. For example, under section 484 of the Tariff

Act of 1930, as amended (19 U.S.C. 1484), the importer of record is

responsible for using reasonable care to enter, classify and value

imported merchandise, and to provide any other information neces-

sary to enable CBP to properly assess duties, collect accurate statis-

tics and determine whether any other applicable legal requirement is

met.

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 , this notice advises

interested parties that CBP is proposing to modify one ruling letter

pertaining to the tariff classification of a cellulose sponge with a

nonwoven cloth side that contains talc. Although in this notice CBP is

specifically referring to New York Ruling Letter (NY) 875045, dated

June 16, 1992 (Attachment A), this notice covers any rulings on this

merchandise which may exist but have not been specifically identi-

fied. CBP has undertaken reasonable efforts to search existing data-

bases for rulings in addition to those identified. No further rulings

have been found. Any party who has received an interpretive ruling or

decision (i.e., a ruling letter, internal advice memorandum or decision

or protest review decision) on the merchandise subject to this notice

should advise CBP during the notice period.

Similarly, pursuant to section 625(c)(2), Tariff Act of 1930 (19

U.S.C. 1625(c)(2)), as amended by section 623 of Title VI, CBP is

proposing to revoke any treatment previously accorded by CBP to

substantially identical transactions. Any person involved in substan-

tially identical transactions should advise CBP during this notice

period. An importer’s failure to advise CBP of substantially identical

transactions or of a specific ruling not identified in this notice may

raise issues of reasonable care on the part of the importer or its

agents for importations of merchandise subsequent to the effective

date of the final decision on this notice.

It is now CBP’s position that the cellulose sponge with a nonwoven

cloth that contains talc identified in NY 875045 is classified in head-

ing 6805, HTSUS, which provides for “Natural or artificial abrasive

CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO.1,JANUARY 1, 2015

powder or grain on a base of textile material, of paper, of paperboard

or of other materials, whether or not cut to shape or sewn or other-

wise made up.”

Pursuant to 19 U.S.C. 1625(c)(1), CBP is proposing to modify NY

875045, and any other ruling not specifically identified, to reflect the

tariff classification of the subject merchandise according to the analy-

sis contained in proposed Headquarters Ruling Letter (HQ) H258156,

as set forth as Attachment B to this notice. Additionally, pursuant to

19 U.S. C. 1625(c)(2), CBP is proposing to revoke any treatment

previously accorded by CBP to substantially identical transactions.

Before taking this action, consideration will be given to any written

comments timely received.

Dated: December 17, 2014

YLES B. HARMON,

Director

Commercial and Trade Facilitation Division

LLYSON MATTANAH

Attachments

CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO.1,JANUARY 1, 2015

ATTACHMENT A

NY 875045

June 16, 1992

CLA-2–39:S:N:N3G:221 875045

CATEGORY: Classification

TARIFF NO.: 3921.14.0000; 5603.00.3000;

6805.30.5000

R.RICHARD E. JARVIS

R.E. JARVIS &ASSOCIATES,INC.

ANNAN RIDGE ROAD

HAVERHILL,MASSACHUSETTS 01832

RE: The tariff classification of cellulose sponges with and without abrasive

non-woven cloths from various countries.

EAR MR.JARVIS:

In your letter dated May 26, 1992, you requested a tariff classification

ruling.

Three types of sponges will be imported. The first type is a rectangular

sponge composed of regenerated cellulose. The second and third types are

also rectangular and composed of regenerated cellulose. These types, how-

ever, have either a rough or non-scratch nonwoven cloth on one surface of the

sponge. The non-scratch cloth contains talc. Talc is not considered an abra-

sive substance for tariff purposes. The rougher nonwoven cloth contains a

mixture of silicon carbide, silica, aluminum oxide and quartz. This mixture is

considered an abrasive substance.

The applicable subheading for the sponges composed of regenerated cellu-

lose that do not have a nonwoven cloth backing will be 3921.14.0000, Har-

monized Tariff Schedule of the United States (HTS), which provides for other

plates, sheets, film, foil and strip, of plastics, cellular, of regenerated cellu-

lose. The rate of duty will be 8.1 percent ad valorem.

The applicable subheading for the sponges that are backed with a non-

woven cloth containing talc will be 5603.00.3000, HTS, which provides for

nonwovens, whether or not impregnated, coated, covered or laminated, other:

laminated fabrics. The rate of duty will be 16 percent ad valorem.

The applicable subheading for the sponges that are backed with a non-

woven cloth containing the abrasive mixture is 6805.30.5000, HTS, the pro-

vision for natural or artificial abrasive powder or grain, on a base of textile

material, of paper, of paperboard or of other materials, whether or not cut to

shape or sewn or otherwise made up, other. Products classified under this

subheading are free of duty.

These sponges will be imported from various countries, such as France,

Switzerland, Norway, Taiwan and China. The rates of duty shown above

apply to products from all these countries.

The sponge with a nonwoven backing containing talc falls within textile

category designation 223. Based upon international textile trade agreements,

products of Taiwan and China are subject to visa and quota requirements.

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,

CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO.1,JANUARY 1, 2015

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.

This ruling is being issued under the provisions of Section 177 of the

Customs Regulations (19 C.F.R. 177).

A copy of this ruling letter should be attached to the entry documents filed

at the time this merchandise is imported. If the documents have been filed

without a copy, this ruling should be brought to the attention of the Customs

officer handling the transaction.

Sincerely,

EAN F. M AGUIRE

Area Director

New York Seaport

CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO.1,JANUARY 1, 2015

ATTACHMENT B

HQ H258156

CLA-2 OT:RR:CTF:TCM H258156 HvB

CATEGORY: Classification

TARIFF NO.: 6805.30.50

ICHARD E. JARVIS

R.E. JARVIS &ASSOCIATES,INC.

ANNAN RIDGE ROAD

HAVERHILL, MA 01832

RE: Revocation of NY 875045; Classification of a cellulose sponge with

non-woven cloth side containing talc

EAR MR.JARVIS:

This letter is in reference to New York Ruling Letter (“NY”) 875045, issued

to you on June 16, 1992, concerning the tariff classification of three rectan-

gular cellulose regenerated sponges. One of the sponges was described as a

cellulose sponge that had a non-scratch non-woven cloth on one surface which

contained talc.

U.S. Customs and Border Protection (CBP) has reviewed NY 875045, and

finds it to be in error with respect to the classification of the regenerated

cellulose sponge that contains talc on its non-scratch non-woven cloth side.

For the reasons that follow, we hereby modify NY 875045, with regard to the

cellulose sponge attached to a non-woven cloth that contains talc.

FACTS:

In NY 875045, CBP classified the rectangular cellulose sponge attached to

a nonscratch non-woven cloth that contained talc in subheading 5603.00.30,

Harmonized Tariff Schedule of the United States (“HTSUS”), which provided

for “Nonwovens, whether or not impregnated, coated, covered or laminated,

other: laminated fabrics.”

The subject sponge is made from regenerated

cellulose.

ISSUE

Whether the subject sponge is classifiable in heading 5603, HTSUS, which

provides for “Nonwovens, whether or not impregnated, coated, covered or

laminated”, or in heading 6805, HTSUS, as “Natural or artificial abrasive

powder or grain, on a base of textile material, paper, of paperboard or of other

materials, whether or not cut to shape or sewn or otherwise made up.”

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States

(HTSUS) is made in accordance with the General Rules of Interpretation

(GRI). GRI 1 provides that the classification of goods shall be determined

according to the terms of the headings of the tariff schedule and any relative

Section or Chapter Notes.

The HTSUS provisions under consideration are as follows:

The subheading structure of heading 5603, HTSUS has changed since 1992. As the

background file for NY 875045 was destroyed on 09/11/2001, we do not have information on

the product’s weight.

CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO.1,JANUARY 1, 2015

5603 Nonwovens, whether or not impregnated, coated, covered or lami-

nated

6805 Natural or artificial abrasive powder or grain, on a base of textile

material, paper, of paperboard or of other materials, whether or not

cut to shape or sewn or otherwise made up:

Section XI, HTSUS, which covers Chapter 56, provides in pertinent part:

1. This section does not cover:

***

(q) Abrasive-coated textile material (heading 6805) and also carbon

fibers or articles of carbon fibers of heading 6815[.]

Chapter 68, HTSUS, provides in pertinent part:

1. This chapter does not cover:

***

(for example, fabric coated or covered with mica powder,

bituminized or asphalted fabric)[.]

***

The Harmonized Commodity Description and Coding System Explanatory

Notes (“ENs”) constitute 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 and

are generally indicative of the proper interpretation of these headings. See

T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The ENs to GRI 3(b) provides, in pertinent part, that:

(VIII) 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.

The EN to 68.05 states, in pertinent part:

This heading covers textile material, paper, paperboard, vulcanised

fibre, leather or other materials, in rolls or cut to shape (sheets, bands,

strips, discs, segments, etc.), or in threads or cords, on to which crushed

natural or artificial abrasives have been coated, usually by means of

glue or plastics. The heading also covers similar products of nonwovens,

in which abrasives are uniformly dispersed throughout the mass and

fixed on to textile fibres by the bonding substance. The abrasives used

include emery, corundum, silicon carbide, garnet, pumice, flint, quartz,

sand and glass powder. The bands, discs, etc., may be sewn, stapled,

glued or otherwise made up; the heading includes, for example, tools

such as buffsticks, made by permanently fixing abrasive paper or cloth

onto blocks or strips of wood, etc ...

CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO.1,JANUARY 1, 2015

The goods of this heading are mainly used (by hand or mechanically) for

smoothing or cleaning up metal, wood, cork, glass, leather, rubber

(hardened or not) or plastics; also for smoothing or polishing varnished

or lacquered surfaces, or for sharpening card clothing.

*****

The instant sponge is composed of regenerated cellulose sponge which has

a non-woven textile cloth side that contains talc. Thus, heading 5603, HT-

SUS, does not completely describe the article, since the sponge is also com-

posed of cellulose and talc, in addition to the non-woven textile backing. Nor

is the classifiable under GRI 1 in heading 6805, HTSUS, as the terms

“abrasive grain, on a base of textile material”, describes only part of the good.

Since the instant article is not classifiable by GRI 1, and because the sponge

is a composite good which consists of different materials, GRI 3 governs.

GRI 3 provides, in pertinent part:

When, by application of rule 2(b) or for any other reason, goods are,

prima facie, classifiable under two or more headings, classification

shall be effected as follows:

(b) 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.

The relevant EN for GRI 3(b) provides:

(VIII) The factor which determines essential character will vary as

between different kinds of goods. It may, for example, be deter-

mined by the nature of the material or component, its bulk,

quantity, weight or value, or by the role of a constituent mate-

rial in relation to the use of the goods.

GRI 3(b) requires that classification be based on the component that pro-

vides the article with its essential character. As noted above, EN (VIII) to GRI

3(b) provides that when performing an essential character analysis, the

factors that should be considered are the bulk, quantity, weight or value, or

the role of a constituent material in relation to the use of the goods. There

have been several court decisions on “essential character” for purposes of

classification under GRI 3(b). See, e.g., Conair Corp. v. United States, 29

C.I.T. 888 (2005); Structural Industries v. United States, 360 F. Supp. 2d

1330, 13371338 (Ct. Int’l Trade 2005); and Home Depot USA, Inc. v. United

States, 427 F. Supp. 2d 1278, 1295–1356 (Ct. Int’l Trade 2006), affd 491 F.3d

1334 (Fed. Cir. 2007). “[E]ssential character is that which is indispensable to

the structure, core or condition of the article, i.e., what it is.” Home Depot

USA, Inc. v. United States, 427 F. Supp. 2d at 1293 quoting A.N. Deringer, Inc.

v. United States, 66 Cust. Ct. 378, 383 (1971 ). In particular, in Home Depot

USA, Inc. v. United States, the court stated “[a]n essential character inquiry

CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO.1,JANUARY 1, 2015

requires a fact intensive analysis.” 427 F. Supp. 2d 1278, 1284 (Ct. Int’l Trade

2006). Therefore, a case-by-case determination on essential character is war-

ranted in this situation.

In this case, the textile cloth layer plays the most important role in the use

of the sponge. As a “non-scratch” sponge, the product is designed to clean and

scour dishes and other kitchen surfaces. The textile cloth layer plays the most

important role in that activity because it is the component that performs the

cleaning and scrubbing function. Without this layer, the sponge is simply a

regenerated cellulose sponge, which we note are sold to the consumer as

separate products. Thus, the textile cloth layer has a more important role in

the sponge because without it, the product is simply a sponge that has a

different use, in that it that does not have a scouring/scrubbing function. The

surface textile layer incorporates talc which provides the subject scrub

sponge with its essential character, or the ability to clean household surfaces

without scratching them. Accordingly, we find that the textile layer is the

component that provides the essential character of the sponge, because the

cloth layer plays a vital role in cleaning. Hence, it is the classification of the

textile layer, which imparts the good with its essential character that governs

classification of the entire composite good.

Insofar as Note 1(q), Section XI, HTSUS, excludes abrasive-coated textiles,

if the textile layer is classified as such in heading 6805, HTSUS, it cannot be

classified in Section XI, the HTSUS section where textiles and textile articles

are classified. Therefore, we turn first to the terms of heading 6805, “artificial

abrasive powder or grain, on a base of textile material.” Although the term

“abrasive” is not defined in the HTSUS, the courts provided guidance on the

term in the context of the TSUS provision for “crude artificial abrasives.” See

Tariff Act of 1930, 19 U.S.C. 1940 ed. § 1201, par. 1672. In C.J. Tower & Sons

v. United States (“C.J. Tower”), 17 Gust. Ct. 72 (1946), the issue before the

U.S. Custom Courts was whether “Alundum” was classifiable in the TSUS

provision for “crude artificial abrasives, not specially provided for.” The court

concluded that alundum was classifiable as an abrasive, based upon legisla-

tive history to the Tariff Act of 1922 which showed that Congress knew of

alundum as an artificial abrasive, when contemplating what commodities the

Tariff Act should provide for:

ARTIFICIAL ABRASIVES-description and uses -Artificial abrasives

are of two kinds (1) silicon carbides, sold under the trade names of

carborundum .... ; and (2) aluminum oxides, sold as alundum ...

Ibid, at 18–19. In C.J. Tower, the importer claimed that its merchandise fell

into a class of merchandise which was chiefly used for abrasive purposes. The

court found that Webster’s definition of “abrasive” supported the importer’s

claim:

Any substance used for abrading, as for grinding, polishing, etc. It is

often made into grinding wheels with a binder, or attached to paper or

cloth or glue. The principal natural abrasives are emery, corundum,

garnet, pumice, Tripoli and quartz sand. The principal manufactured

abrasives are silicon carbide and fused aluminum oxide.

CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO.1,JANUARY 1, 2015

Id., at 13. While the provision for “crude artificial abrasives” under the TSUS

no longer exists, the term “abrasive” remains in the heading at issue.

The analysis in C.J. Tower is echoed by the exemplars in the EN 68.05,

which states “The abrasives used include emery, corundum, silicon carbide,

garnet, pumice, flint, quartz, sand and glass powder ....” Furthermore, under

the uniform usage rule of statutory construction, terms ordinarily have the

same meaning throughout the statute, unless there is such variation in

connection in which the words are used. See Gen. Dynamics Land Syst. v.

Cline, 540 U.S. 581, 591–596 (2004), Roberts, 132 S. Ct. 1350 (2012). For

example, heading 2513, HTSUS, provides for natural abrasives: “pumice;

emery; natural corundum, natural garnet and other natural abrasives,

whether or not heat treated.” EN 25.13, HTSUS, explains that “artificial

abrasives such as artificial corundum and silicon carbide” are provided for in

other headings.

Therefore, under the uniform usage rule of statutory con-

struction, the term “abrasives” in heading 6805, HTSUS, refers to the natural

mineral abrasives covered by heading 2513, and other headings of chapter 25,

HTSUS, and artificial (i.e., synthetic chemical) versions (i.e., imitations) of

those natural abrasives. Articles classifiable in heading 6805, HTSUS, con-

sist of a textile base covered with a natural mineral abrasive or with an

artificial abrasive powder or grain. For example, a product classifiable in

heading 6805, HTSUS, could be coated with the natural mineral abrasive

corundum or with a synthetic chemical version of corundum (i.e., aluminum

oxide). Hence, between the court in C.J. Tower, the tariff terms and the ENs

we now have the following exemplars of abrasives: emery, corundum, silicon

carbide, garnet, pumice, flint, quartz sand and glass powder, silicon carbide,

aluminium oxide, and Tripoli. Many of these exemplars are mentioned two or

three times. Talc is notably absent.

However, these exemplars are further described by the next paragraph in

the EN 68.05 which reads: “goods ... mainly used (by hand or mechanically)

for smoothing or cleaning up metal, wood, cork, glass, leather, rubber (hard-

ened or not) or plastics; also for smoothing or polishing varnished or lac-

quered surfaces, or for sharpening card clothing.” For instance, emery is a

variety of corundum (also listed) and is the hardest mineral after diamonds.

It is used to make abrasive powder and coated abrasives such as emery cloth

and emery paper which are used to abrade metal. They remove metal par-

ticles and rust from steel and other metals. But it also has a well-known use

in emery boards used to file finger-nails. Pumice, a stone composed of volcanic

ash, is used as an abrasive to “stone-wash” denim which abrades the fabric.

It is also used to abrade callused skin and in toothpaste to remove plaque

without removing enamel. Tripoli is used in polishing. Tripoli has had unique

uses as an abrasive and the deburring of metal and plastic castings. The

automobile industry uses it in buffing and included uses in sharping tools for

wood polishing compounds in lacquer finishing. Garnet is often used as an

Heading 2513, HTSUS, provides for “pumice stone; emery; natural corundum, natural

garnet and other natural abrasives, whether or not heat treated”. This conforms with

requestor’s own citation to Reade. See http://www.reade.com/Particle Briefings/

mohs_hardness_abrasive_grit.html (last accessed June 13, 2012).

CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO.1,JANUARY 1, 2015

abrasive because of how hard it is. It can be used as an abrasive blasting

material in “water jet cutting,” but has also been used in more simple

grinding tools such as sandpaper to finish metals and wood.

Under the doctrine of “noscitur a sociis” meaning “it is known by its

associates” which, as a rule of construction, “has the effect of declaring that

the meaning of a word may be ascertained by reference to the meaning of

words associated with it.” See Ruth F. Sturm, Customs Law and Administra-

tion, Third Ed. section 32.11 at 63 (2007). Though not listed as an exemplar,

talc, too, can be used to clean up and smooth wood after sanding. It is also

used in nylon grinding wheels. These uses provide evidence that talc is

similar to some of the named exemplars above, particularly Tripoli in that it

is a relatively soft abrasive mineral used on wood or lacquer, and to pumice

and emery which, in addition to abrading the EN listed materials, are known

for their ability to abrade skin, teeth or fingernails.

Furthermore, CBP has previously addressed the classification of abrasive

articles on backings such as textile and paper. See, e.g., HQ 954857, dated

December 8, 1993, in which we ruled that the “Scotchbrite Flap Brush and

Combi Wheels” which was described as “surface conditioning abrasive prod-

ucts which are designed to clean and condition a surface for painting or

plating operations, deburr drilled, punched or machined parts and/or provide

a decorative scratch pattern on a workpiece” was classified in heading 6805,

HTSUS.

By application of GRI3(b), the subject sponge composed of an abrasive

grain (talc) on a textile, is classified in heading 6805, HTSUS. Specifically, it

is classified in subheading 6805.30.50, HTSUS, which provides for “Natural

or artificial abrasive powder or grain, on a base of textile material, of paper,

of paperboard or of other materials, whether or not cut to shape or sewn or

otherwise made up: On a base of other materials: Other.” The column one

general rate of duty is Free.

HOLDING:

Under the authority of GRI 3(b), the subject cellulose sponge containing

talc is classified in heading 6805, HTSUS. It is specifically provided for in

subheading 6805.30.50 HTSUS, which provides for “Natural or artificial

abrasive powder or grain, on a base of textile material, paper, of paperboard

or of other materials, whether or not cut to shape or sewn or otherwise made

up: On a base of other materials: Other.” The applicable duty rate is Free.

Duty rates are provided for your convenience and are subject to change.

The text of the most recent HTSUS and the accompanying duty rates are

provided on the internet at www.usitc.gov/tata/hts/.

See http://www.people.carleton.edu/~cdavidso/Geo110/MinUse05.htm

CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO.1,JANUARY 1, 2015

EFFECT ON OTHER RULINGS:

NY 875045 is MODIFIED.

Sincerely,

YLES B. HARMON,

Director

Commercial and Trade Facilitation Division

CUSTOMS BULLETIN AND DECISIONS, VOL. 49, NO.1,JANUARY 1, 2015

GENERAL NOTICE

19 CFR PART 177

PROPOSED REVOCATION OF TWO RULING LETTERS,

MODIFICATION OF TWO RULING LETTERS, AND

PROPOSED REVOCATION OF TREATMENT RELATING TO

THE CLASSIFICATION OF PLUSH ANIMALS WITH GEL

PACKS

AGENCY: U.S. Customs and Border Protection (“CBP”), Depart-

ment of Homeland Security.

ACTION: Notice of proposed revocation of two ruling letters, pro-

posed modification of two ruling letters, and proposed revocation of

treatment relating to the classification of plush animals with gel

packs.

SUMMARY: Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C.

1625 (c)), as amended by section 623 of Title VI (Customs Modern-

ization) of the North American Free Trade Agreement Implementa-

tion Act (Pub. L. 103–182, 107 Stat. 2057), this notice advises inter-

ested parties that CBP proposes to revoke two ruling letters and

modify two ruling letters concerning the classification of plush ani-

mals with gel packs under the Harmonized Tariff Schedule of the

United States (HTSUS). Similarly, CBP intends to revoke any treat-

ment previously accorded by CBP to substantially identical transac-

tions. Comments are invited on the correctness of the proposed ac-

tions.

DATES: Comments must be received on or before February 2,

2015

ADDRESSES: Written comments are to be addressed to U.S.

Customs and Border Protection, Office of International Trade,

Regulation and Rulings, Attention: Trade and Commercial

Regulations Branch, 90 K Street, N.E.-10th Floor, Washington, DC

20229–1179. Comments submitted may be inspected at 90 K Street,

N.E. during regular business hours. Arrangements to inspect