CLA-2 RR:CR:GC 959152 ptl
Port Director
U.S. Customs Service
9901 Pacific Highway
Blaine, Washington 98230
RE: Protest 3004-96-100026; flangeway fillers of recycled
rubber.
Dear Port Director:
The following is our response to protest 3004-96-100026
concerning your classification under the Harmonized Tariff
Schedule of the United States, (HTSUS) of articles identified as
flangeway fillers of recycled rubber.
The entries covering the merchandise were liquidated on
November 13, 1995, under the provision for flange fillers of
recycled rubber in subheading 4008.29.20, HTSUS. A timely
protest under 19 U.S.C. 1514 was received on January 3, 1996.
The protestant requested reliquidation of the entry under the
provision for unvulcanized rubber in subheading 4006.90.50,
HTSUS.
FACTS:
The merchandise under protest is strips of reclaimed rubber,
called flangeway strips, which lay alongside each of the steel
running rails on which trains move. They are used mainly at
road-rail crossings. According to the manufacturer, the strips
help prevent electrical current from passing from one rail to the
other and they insulate the rail from moisture penetration. The
strips are manufactured from reclaimed rubber and polymers by
using an extrusion method. The strips are extruded in varying
lengths which can be up to 25 feet long.
Because the articles are primarily composed of reclaimed
rubber, the importer attempted to enter them under heading 4003
which provides for reclaimed rubber in primary forms or in
plates, sheets or strip. This classification was rejected and
the merchandise was reclassified under subheading 4008.29.20,
HTSUS, which provides for: Plates, sheets, strips, rods and
profile shapes, of vulcanized rubber other than hard rubber: Of
noncellular rubber: Other: Profile shapes.
Because the initial classification was rejected, the
importer filed this protest attempting to have the merchandise
classified under subheading 4006.90.50, HTSUS, which provides
for: Other forms (for example, rods, tubes and profile shapes)
and articles (for example, disks and rings), of unvulcanized
rubber, Other, Other. In support of his position, the protestant
has provided a letter, dated November 23, 1995, from the Canadian
Department of Foreign Affairs and International Trade.
ISSUE:
What is the proper classification of rubber flangeway
fillers?
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) in accordance with the
General Rules of Interpretation (GRI). The systematic detail of
the HTSUS is such that virtually all goods are classified by
application of GRI 1, that is, 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
in order. In understanding the language of the HTSUS, the
Harmonized Commodity Description and Coding System Explanatory
Notes may be utilized. The Explanatory Notes (ENs), although not
dispositive or legally binding, 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 provisions under consideration are as follows:
4003.00.00 Reclaimed rubber in primary forms or in
plates, sheets or strip.
* * * * *
4006 Other forms (for example, rods, tubes, and
profile shapes) and articles (for example,
discs and rings), of unvulcanized rubber:
4006.90 Other:
4006.90.50 Other.
* * * * *
4008 Plates, sheets, strip, rods and profile shapes, of
vulcanized rubber other than hard rubber:
Of cellular rubber:
4008.19 Other:
Of natural rubber:
4008.19.20 Profile shapes.
4008.19.60 Other:
Profile shapes.
Of noncellular rubber:
4008.29 Other:
4008.29.20 Profile shapes.
* * * * *
Heading 4003 covers reclaimed rubber which is described in
the ENs as being obtained from used rubber articles, especially
tires, or from waste or scrap of vulcanized rubber. However,
this heading covers reclaimed rubber only in primary forms or in
plates, sheets or strip. A picture of a cross section of the
articles under protest was submitted to Customs by the
manufacturer. Based on that cross section, we have determined
that the articles are in the form of a profile. Thus, they are
not in any of the described forms eligible for classification in
this heading.
The protestant has requested classification in subheading
4006.90.50, HTSUS. As noted above, this subheading provides for
articles which are composed of unvulcanized rubber. The Customs
laboratory has examined a sample of the subject article and, in
Report No. 8-95-22001-001, issued on October 16, 1995, stated
that the product is a mixture composed essentially of vulcanized
natural rubber, vulcanized styrene butadiene rubber and
inorganics (approximately 36% by weight). We note that
classification of the articles in this subheading was supported
by the Canadian Department of Foreign Affairs and International
Trade. However, their letter was written without benefit of the
report containing the results of the Customs laboratory analysis
of the articles. Based on this report, the articles are not
eligible for classification in this subheading.
Based upon information regarding the profile shape of the
articles provided by the importer, the Customs laboratory report
regarding the composition of the articles, and noting that the
rubber is obtained from ground tires and is thus noncellular, we
have determined that they are properly classifiable in subheading
4008.29.20, HTSUS.
HOLDING:
Flange fillers of recycled rubber are classified in
subheading 4008.29.20, HTSUS.
The protest should be DENIED. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, Revised Protest
Directive, dated August 4, 1993, a copy of this decision attached
to Customs Form 19, Notice of Action, should be provided by your
office to the protestant no later than 60 days from the date of
this decision and any reliquidations of entries in accordance
with this decision must be accomplished prior thereto. Sixty
days from the date of this decision the Office of Regulations and
Rulings will take steps to make this decision available to
Customs personnel via the Customs Rulings Module in ACS and the
public via the Diskette Subscription Service, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division