CLA-2 RR:TC:MM 959722 JAS
Karen Bysiewicz, Esq.
Coudert Brothers
1114 Avenue of the Americas
New York, NY 10036-7703
RE: Rubber Track; Rubber Coated Steel Track for Use With Excavators, Tractors, Tracked Carriers, and Agricultural and
Construction Machinery; Outer Rubber Casing Reinforced With Steel Cord Combined With Metal Embeds; Composite Good, GRI 3(c); Heading 8431, Parts, Sole or Principal Use; THK America, Inc. v. U.S.; Heading 4012, Tires of Rubber
Dear Ms. Bysiewicz:
Your ruling request, dated August 7, 1996, to the Director,
National Commodity Specialist Division, New York, on behalf of
Bridgestone Engineered Products Company, Inc.(BEP), has been
referred to this office. Your inquiry concerns the tariff
classification of merchandise called Rubber Tracks. In preparing
this ruling we considered your additional submissions of April 28
and May 2, 1997, and the oral arguments you made at a meeting in
our office on April 30, 1997.
FACTS:
Rubber Track denotes a rubber coated steel track for use on
excavators and dozers, tracked carriers, construction equipment,
agricultural machinery and snowfield vehicles. Advertised as an
effective blend of rubber tire and steel track technology, the
Rubber Track consists of a vulcanized rubber outer portion or
casing with reinforced steel cords evenly spaced along its width
and a number of anvil-shaped steel flights or embeds affixed to
the underside. The steel-reinforced rubber portion, available in
a variety of lug patterns, is in direct contact with the ground
to provide traction, while the steel embeds are configured to
engage with the teeth of sprockets. The Rubber Track effects the
movement of a tracked vehicle as power from the engine initiates - 2 -
rotation of the sprocket wheels and the rubber casing to which
they attach. At the same time, Rubber Tracks increase the
effectiveness and versality of tracked vehicles in wet and soft
terrain.
You maintain that the Rubber Track is a composite good made
up of different components which is to be classified, pursuant to
General Rule of Interpretation (GRI) 3(b), Harmonized Tariff
Schedule of the United States (HTSUS), as if consisting of that
component which imparts the essential character to the whole.
For reasons which follow, you maintain that the essential
character is imparted by the steel components. You state the
same result obtains under GRI 3(c), in the event no essential
character determination can be made. You state that over 80
percent of the Rubber Tracks imported into the United States are
used on excavators of the type provided for in heading 8429, thus
establishing their principal use. As an article of steel, and a
part solely or principally used on excavators, you conclude that
the Rubber Track is provided for in heading 8431.
Alternatively, you maintain that if the Rubber Track is found to
be an article of rubber, then it qualifies as a tire of heading
4012.
The provisions under consideration are as follows:
4012 ...solid or cushion tires...of rubber:
4012.90 Other:
4012.90.10 Other...Solid or cushion tires...Free
* * * *
4016 Other articles of vulcanized rubber other than hard rubber:
Other:
Other:
4016.99.60 Other...3.6 percent ad valorem
* * * *
- 3 -
8431 Parts suitable for use solely or principally with the machinery of headings 8425 to 8430:
8431.49 Other:
8431.49.90 Other...1 percent ad valorem
ISSUE:
Whether the essential character of the Rubber Track is
imparted by the rubber casing or the base metal components.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) in accordance with the
General Rules of Interpretation (GRIs). GRI 1 states in part
that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
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 and are thus useful in
ascertaining the classification of merchandise under the System.
Customs believes the ENs should always be consulted. See T.D.
89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
Initially, the provision in heading 8431 is governed by the
appropriate section and chapter legal notes. Section XVI, Note
1(a), HTSUS, states in relevant part that the section does not
cover articles of a kind used in machinery or mechanical or
electrical appliances or for other technical uses, of vulcanized
rubber other than hard rubber (heading 4016). Therefore, if the
Rubber Track is considered an article of vulcanized rubber for
tariff purposes, it cannot be classified in heading 8431, or in
any other provision of Chapter 84 or Chapter 85.
We agree that the Rubber Track is prima facie classifiable
under two or more headings, each of which describes part only of
the good. GRI 3, HTSUS, states in relevant part that composite
goods made up of different components are to be classified as if
consisting only of that component which gives them their - 4 -
essential character insofar as this criterion is applicable, or
when goods can not be so classified, in the heading which occurs
last in numerical order among those which equally merit
consideration. Relevant ENs for GRI 3 state, at p. 4, that the
factor or factors which determines essential character will vary
as between different kinds of goods. It may be determined by the
nature of the component, its bulk, quantity, weight or value, or
by its role in relation to the use of the goods.
You contend in this case that the steel components impart
the essential character because the steel predominates both by
weight and volume over the rubber; the steel cord adds strength
and durability to the rubber casing, which not only increases the
weight-bearing capacity of the Rubber Track but prevents the
sprocket wheels from tearing through the rubber; and, the steel
embeds allow the rubber casing to engage with the teeth of the
sprocket wheel and facilitate transfer of force from the drive
sprockets to permit forward movement of the machine; and,
finally, while the Rubber Track could function without the rubber
portion, it cannot function effectively without the embeds and
reinforcing cords of metal.
On the other hand, while not determinative in ascertaining
the classification of goods, an importer's descriptive literature
has probative value of the way he views the goods and the market
he is trying to reach. See THK America, Inc. v. United States,
17 CIT 1169 (1993). In comparing the Rubber Track to steel
tracks and wheels, the advertising materials you have submitted
list the following under the caption ADVANTAGES: less rutting of
soft ground, less vibrations and noise than steel tracks, higher
attainable speeds, low ground pressure and superior traction for
more pulling power. These all relate to the outer rubber casing.
In using the Rubber Track the following are listed under the
heading PRECAUTIONS: controlled tension to prevent detracking,
unfavorable terrain and unsafe driving techniques can damage the
lug (rubber) side, or cause it to crack; avoiding exposure to
direct sunlight and operation in a suitable temperature range.
Once again, all of these factors relate to the condition of the
outer rubber casing. Finally, the literature indicates the
Rubber Track is offered with multiple lug patterns within several
series - agricultural, construction and snow removal - which
dedicates a machine or vehicle to a service application in more
than one terrain. Even the name RUBBER TRACK suggests that BEP
considers the rubber portion to be significant. - 5 -
In summary, the evidence of record compels us to conclude
that the outer rubber casing and the metal embeds and cords are
equally important components, neither of which can be considered
pivotal. Each contributes significantly to the overall
functioning of the Rubber Track. For these reasons, we conclude
that an essential character for the Rubber Track cannot be
determined. Under GRI 3(c), the Rubber Track is to be classified
as if consisting only of the base metal component.
The submitted literature states the Rubber Track is
available in lug patterns which dedicate it to use with
agricultural machinery, construction machinery and with snowfield
vehicles. However, you maintain this is general-purpose
advertising, and that as stated previously, over 80 percent of
the Rubber Tracks imported into the United States are used on
excavators. We note, however, that this claim as to principal
use is undocumented in the record.
HOLDING:
Under the authority of GRI 1, the Rubber Track is provided
for in heading 8431. Assuming sole or principal use can be
established as claimed, it is classifiable in subheading
8431.49.90, HTSUS. The rate of duty is 1 percent ad valorem.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division