CLA-2 CO:R:C:T 955372 HP
Mr. John H. Heinrich, Jr.
District Director
U.S. Customs Service
300 South Ferry Street
Room 1001
Terminal Island, CA 90731
RE: Application for Further Review of Protest 2704-93-102286.
Engraving rubber.
Dear Mr. Heinrich:
This is in reply to your Memorandum PRO-1-LA:E MMB/rlg of
October 14, 1993, transmitting Application for Further Review of
Protest 2704-93-102286, IST 712.The Protest was timely filed and
concerns the classification, under the Harmonized Tariff Schedule
of the United States Annotated (HTSUSA), of engraving rubber.
FACTS:
The merchandise at issue consists of engraving rubber,
invoiced as "Natural Rubber." The material is manufactured in
Japan by the Meiwa Rubber Company of Ota-Ku, Tokyo. The invoice
lists two styles, P/T No. 1-2 and P/T No. 3, which are shipped in
sheet form. Their measurements are given as 1,220 mm x 3,050 mm
(3.72 m squared) x 6.35 mm thick, and 1,000 mm x 3,000 mm (3 m
squared) x 3.94 mm thick, respectively. The sample submitted is
6.35 mm thick. The product consists of two different layers of
noncellular rubber, with one approximately twice as thick as the
other. There is a woven layer of fabric of unidentified textile
fibers laminated between the two layers of rubber. The total
weight of the rubber for the two styles are 34.4 kg/sheet, and
18.4 kg/sheet, respectively. The total weight of the textile
fabric in the two styles is 1.12 kg/sheet (3% of total weight)
and 0.90 kg/sheet (5% of total weight). The total weights of the
entire products are 9,247 g/m squared, and 6,133 g/m squared,
respectively.
Engraving rubber is a product used in the printing industry,
where designs, patterns, shapes, figures, script and the like are
cut into the surface (engraved). It is mounted on a printing
press, "inked," and used to print on corrugated boxes and other
uneven surfaces. This is similar to wood or linoleum printing.
The concept is somewhat analogous to the use of printers'
blankets; in the latter, however, the inked image or type is
transferred to the material via the blanket.
The subject material was originally entered under subheading
4001.29.0000, HTSUSA, as a sheet of other natural rubber. You
reclassified the shipment and liquidated the entry under
subheading 5911.10.2000, HTSUSA, as a textile fabric laminated
with rubber, of a kind used for technical purposes.
ISSUE:
Whether the engraving rubber is considered rubber or textile
under the HTSUSA?
LAW AND ANALYSIS:
Heading 5911, HTSUSA, provides for textile products and
articles, for technical uses. The General Rules of
Interpretation (GRIs) to the HTSUSA govern the classification of
goods in the tariff schedule. GRI 1 states, in pertinent part,
that such "classification shall be determined according to the
terms of the headings and any relative section or chapter
notes. . . ." Goods which cannot be classified in accordance
with GRI 1 are to be classified in accordance with subsequent
GRIs, taken in order. Note 1(ij) to Section XI, HTSUSA, excludes
from classification therein ". . . fabrics . . . impregnated,
coated, covered or laminated with rubber, or articles thereof, of
chapter 40." Since the engraving rubber is composed of both
rubber and textile, we must determine if it meets the definition
of a good of Chapter 40. If so, it is excluded from
classification in Section XI, and, by extension, heading 5911,
HTSUSA.
The Explanatory Notes (EN) to the Harmonized Commodity
Description and Coding System (Harmonized System) constitute the
official interpretation of the scope and content of the tariff at
the international level. They represent the considered views of
classification experts of the Harmonized System Committee.
Totes, Inc. v. United States, No. 91-09-00714, slip op. 92-153,
14 Int'l Trade Rep. (BNA) 1916, 1992 Ct. Intl. Trade LEXIS 158
(Ct. Int'l Trade 1992). While not treated as dispositive, the EN
are to be given considerable weight in Customs' interpretation of
the HTSUSA. Boast, Inc. v. United States, 15 Int'l Trade Rep.
(BNA) 1188, 1993 Ct. Intl. Trade LEXIS 19 (Ct. Int'l Trade 1993).
It has therefore been the practice of the Customs Service to
follow, whenever possible, the terms of the Explanatory Notes
when interpreting the HTSUSA. The EN to Chapter 40, at 580,
states that: [t]he classification of rubber and textile
combinations is essentially governed by Note
1(ij) to Section [supra], Note 3 to Chapter
56 [(nonwovens)] and Note 4 to Chapter
59. . . . The following products are covered
by this Chapter:
* * *
(c) Textile fabrics . . . impregnated,
coated, covered or laminated with
rubber, weighing more than 1,500 g/m
squared and containing 50% or less by
weight of textile material. . . .
Heading 4001, HTSUSA, provides for, inter alia, natural
rubber in primary forms or in plates, sheets or strip. Note 9 to
Chapter 40, HTSUSA, requires plates, sheets and strip of heading
4001 to be "uncut or simply cut to rectangular (including square)
shape, whether or not having the character of articles and
whether or not printed or otherwise surface-worked, but not
otherwise . . . further worked." Since the engraving rubber is
further worked (laminated to a textile fabric), it is excluded
from classification in heading 4001, HTSUSA.
Heading 4008, HTSUSA, provides for, inter alia, sheets of
vulcanized rubber. The EN to this heading, at 590, states that
"classification of products made from vulcanized rubber . . .
combined (either in the mass or on the surface) with textile
materials is subject to the provisions of . . . Note 4 to Chapter
59." This Note defines the term "rubberized textile fabric" for
purposes of heading 5906, HTSUSA. If the engraving rubber meets
this definition, it is excluded from heading 4008, HTSUSA, and
would be considered a good of Section XI.
Note 4 to Chapter 59, HTSUSA, states:
. . . the expression "rubberized textile
fabrics" means:
(a) Textile fabrics impregnated, coated,
covered or laminated with rubber:
(i) Weighing not more than 1,500
g/m squared; or
(ii) Weighing more than 1,500 g/m
squared and containing more
than 50 percent by weight of
textile material;
(b) Fabrics made from yarn, strip or the
like, impregnated, coated, covered or
sheathed with rubber, of heading 5604;
(c) Fabrics composed of parallel textile
yarns agglomerated with rubber,
irrespective of their weight per square
meter; and
(d) Plates, sheets or strip, of cellular
rubber, combined with textile fabric,
where the textile fabric is more than
mere reinforcement, other than textile
products of heading 5811.
It is clear from the description of the merchandise in the
FACTS section of this ruling that the engraving rubber does not
meet the definition of "rubberized textile fabric." Pursuant to
Note 1(ij) to Section XI and Note 4 to Chapter 59, therefore, it
cannot be classified as a textile good of Section XI, HTSUSA.
Accordingly, it is classifiable within Chapter 40 as a
textile/rubber combination.
HOLDING:
As a result of the foregoing, the instant merchandise is
classified under subheading 4008.21.0000, HTSUSA, as plates,
sheets, strip, rods and profile shapes, of vulcanized rubber
other than hard rubber, of noncellular rubber, plates, sheets and
strip. The applicable rate of duty is 3.4 percent ad valorem.
You are instructed to deny the protest, except to the extent
reclassification of the merchandise as indicated above results in
a partial allowance. In accordance with Section 3A(11)(b) of
Customs Directive 099 3550-065, dated August 4, 1993, Subject:
Revised Protest Directive, this decision should be mailed by your
office to the protestant no later than 60 days from the date of
this letter. Any reliquidation of the entry in accordance with
the decision must be accomplished prior to the mailing of the
decision. Sixty days from the date of the decision the Office of
Regulations & Rulings will take steps to make the decision
available to Customs personnel via the Customs Rulings Module in
ACS, and to the public via the Diskette Subscription Service,
Lexis~, Freedom of Information Act, and other public access
channels.
Sincerely,
John Durant, Director
Commercial Rulings Division