CLA-2 CO:R:C:T 087392 GAH
District Director
United States Customs Service
111 West Huron Street
Buffalo, New York 14202
ATTN: Senior Import Specialist, Mr. Ralph Perri, CST 164
RE: Request for Internal Advice 15/90; Gaskets and gasket
material; Cork; Rubber; Cork and rubber composite;
Agglomerated cork; Parts of automobiles; Parts of machines;
Parts of engines.
Dear Sir:
This is in response to your request for internal advice
dated February 21, 1990, regarding the tariff classification of
cork and rubber gasket materials and gaskets.
FACTS:
Two classes of merchandise are presented here: finished
gaskets and gasket materials in sheet or strip form. Both are
made of a cork and rubber composite material. The cork and
rubber are combined in Portugal and formed into blocks. The
blocks are shipped to Canada where the importer slices the large
pieces into sheets or elongated strips. Some of the material is
shipped into the United States in sheet or strip form; some is
cut to final shape as gaskets and then imported.
The samples provided have a mottled appearance. Information
provided by the importer indicates that both the weight and value
of the material varies from 60 to 80% rubber and 40 to 20% cork.
The importer claims classification under the provisions for
rubber, based on the assumption that the character of the product
is conveyed by the rubber component. The port of entry, in a
Notice of Entry (Customs Form (CF) 19), proposed to classify the
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goods under the provisions for agglomerated cork. Alternatively,
the port suggested that both the rubber and cork components
contributed equally to the character of the goods, and that
classification should be made under that provision which occurs
last in the nomenclature. In this case, that would be the
provision for agglomerated cork. The importer then made this
request for internal advice.
ISSUE:
Are the gasket materials properly classifiable as sheets of
vulcanized rubber in heading 4008, HTSUSA, or as agglomerated
cork in heading 4504, HTSUSA?
LAW AND ANALYSIS:
Gasket materials
The instant merchandise is an article of a mixture of
synthetic rubber and cork. At General Rule of Interpretation
(GRI) 1, HTSUSA, classification is determined according to the
terms of the headings and the relative legal notes. If such
headings or notes are not dispositive of the proper
classification, GRI 1 instructs that we apply the remaining GRIs,
taken in order.
Applying GRI 1, two headings may be considered for the
classification of the instant merchandise. Heading 4008 covers
plates, sheets, strip...of vulcanized rubber.... Heading 4504
covers agglomerated cork (with or without a binding substance)
and articles of agglomerated cork.
Heading 4008, providing for vulcanized rubber in numerous
forms, may be descriptive of the gasket material. The rubber
constituent from which the importer's products are made meets the
definition for synthetic vulcanized rubber. Chapter 40, notes 1
and 4(a), and the Explanatory Notes (EN) at 578.
The importer claims that the other component, granulated
cork, is merely a compounding substance used to fill the rubber,
added to the rubber before vulcanization. Of course, compounding
agents are clearly allowed in synthetic unvulcanized rubber.
Chapter 40 EN at 578. Vulcanized rubber combined with another
substance, such as cork, may remain classifiable in that heading
if the whole retains the essential character of rubber. EN at
590.
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Heading 4504 covers agglomerated cork (with or without a
binding substance) and articles of agglomerated cork.
Agglomerated cork is manufactured by agglomerating crushed,
granulated or ground cork generally under heat and pressure with
an added binding substance, e.g., unvulcanised rubber. EN at
649. This heading text expressly describes the precise mixture
at issue here. There are no limits given in the nomenclature or
EN for the amount of binder allowed in combination with the cork
particles to meet the terms of heading 4504 as agglomerated cork.
The properties that allow a gasket material to perform
properly are critical to the classification of this merchandise.
A gasket provides a seal or cushion between, for example, two
machinery parts so that fluids or gases do not escape at the
joining of those parts. The technical properties of rubber and
cork as used within the gasket material mixture must be
evaluated.
The importer claims that cork does not provide attributes
necessary for satisfactory performance of the gasket. We
disagree. To the contrary, cork is a natural substance with
unique properties due to its tiny, closely packed, 14-sided cell
structure. Cork is even more compressible than rubber. Its cell
structure will compress under pressure, and return to its
original shape and size when that pressure is removed. Thus,
cork counteracts rubber's tendency to yield under prolonged
stress, and flow out the sides of the joint. In gasket
applications, this trait is invaluable in preserving the
integrity of the seal. Cork is highly resistant to oil and
water. See 7 Kirk-Othmer Encyclopedia of Chemical Technology 110
(1979 ed.). Thus, notwithstanding its light weight, cork
provides fundamental characteristics to the gasket.
The Explanatory Notes support the technical literature.
Agglomerated cork retains most of natural cork's properties. EN
at 649. In particular, cork is light, elastic, compressible,
flexible, waterproof, rotproof, and does not conduct heat or
sound. EN at 647. A binder may modify certain features of cork,
especially specific gravity and tensile or crushing strength. EN
at 649. Agglomerated cork of heading 4504 is used to make much
the same range of products as natural cork, including washers and
gaskets, and is preferred for building materials, for insulating
and protecting hot water or steam piping, for lining petrol
pipelines, and for expansion jointing in the construction
industry. EN at 648-49.
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The rubber, it is claimed, provides heat resistance,
compressibility, and impermeability. The properties of the
rubber are highly dependent on and modified by the materials with
which the rubber is combined. See generally, 20 Kirk-Othmer 374-
86 (1982 ed.). Heat resistance, compressibility, and
impermeability are provided by the cork as well. Moreover, the
EN for heading 4504 recognizes that agglomerated cork, while
retaining the qualities of natural cork, may have certain of its
qualities modified by the binding substance. In that instance,
the whole remains classified in 4504.
Further, while the above qualities are present in both
natural and agglomerated cork, two chief qualities of rubber have
been severely modified by the presence of cork. Specifically,
the mixture has none of the elastic recovery of uncompounded
rubber. Also, as noted below, rubber's tendency to deform is
greatly reduced or eliminated by cork's unique stability under
pressure. The EN for heading 4008, although noting that it
includes products of both vulcanized rubber and compounded
rubber, does not list gaskets, washers or seals for machine parts
as a common use for such materials.
It is claimed that rubber is more than a mere binder, and by
the terms of the heading, the importer's gasket materials are not
specifically described as agglomerated cork. We disagree. We
recognize that a rubber binder may cause the enhancement of the
properties of the product, but this does not defeat
classification as agglomerated cork. It is implicit in the
examples of binding substances given, such as plastics and tar,
that those agents have inherent properties of their own. The key
point is that they act in this case as a binding substance.
The manufacturer asserts that specifications for automotive
gaskets indicate that specific combinations of cork and rubber
gasket materials (generally having no less than 50% rubber by
weight) are required to meet current automotive standards. A
specific combination of cork and rubber may indeed be required
for a given application. This is entirely consistent with
classification as agglomerated cork. We believe the instant
gasket materials are classifiable at GRI 1 as agglomerated cork
of heading 4504.
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Complete gaskets for automotive use
The port of entry proposed classifying the completed gaskets
for engine use in heading 8409, HTSUSA, as parts of engines. The
Legal Notes to Section XVI and to Chapter 84, HTSUSA do not
exclude gaskets of agglomerated cork from classification in
Chapter 84. The issue to resolve is whether the gaskets are
covered more specifically as articles of agglomerated cork of
heading 4504, or as parts suitable for use solely or principally
with the engines of heading 8407 or 8408, providing for
combustion engines.
Heading 4504 is not a more specific provision within the
meaning of GRI 3(a). A provision for articles of a named
material is a residual provision that is not sufficiently
specific to exclude an article from classification as a part
under the HTS. Thus, the agglomerated cork gaskets for use in
combustion engines are classified as parts of engines in heading
8409.
Gaskets for automotive transmissions of heading 8708, on the
other hand, are precluded from classification as articles of
Section XVII, note 2(a), see the Section EN (III)(A), and
therefore are classified as articles of agglomerated cork in
subheading 4504.90.2000, gaskets.
HOLDING:
The merchandise imported in sheets or strips, including
strip in roll form, consisting of cork and rubber combined in the
manner described above, is classified in subheading 4504.10.1000,
HTSUSA, as agglomerated cork, vulcanized sheets and slabs wholly
of ground or pulverized cork and rubber. The associated rate of
duty for this subheading is 3.7 percent ad valorem.
The material, imported as cut, completed gaskets made of the
same material for use in automotive engines, is classified in
subheading 8409.91.9190, HTSUSA, as parts suitable for use solely
or principally with spark-ignition internal combustion piston
engines, for vehicles of subheading 8701.20, or heading 8702,
8703 or 8704, other; or in subheading 8409.91.9990, if for
compression-ignition internal combustion engines of heading 8408.
The rate of duty associated with these subheadings is 3.1 percent
ad valorem.
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Finished gaskets of the above material for use in automotive
transmissions are classified in subheading 4504.90.2000, gaskets,
washers, and other seals, with a duty rate of 18%. Under the
terms of the Canadian Free Trade Agreement, the above merchandise
may be eligible for entry at a reduced rate of duty.
Sincerely,
John Durant, Director
Commercial Rulings Division