CLA-2: RR:CR:GC 965284 DBS
Port Director
U.S. Customs Service
4341 International Parkway, Suite 600
Atlanta, GA 30354
RE: Protest 1704-01-100177; Removable road tape; mixtures; GRI 3(b)
Dear Port Director:
This is our decision on Protest 1704-01-100177 filed against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of three types of “Trelleborg Removable Road Tape.” The entries were liquidated on April 5, 2001, and the protest timely filed on June 26, 2001.
FACTS:
The subject article, which is identified as "Trelleborg Removable Road Tape", is composed of four components: non-vulcanized nitrile-butadiene rubber, hot melt adhesive, glass beads and a polyurethane topcoat. You indicated that the urethane is applied to the rubber sheet and the glass beads are metered onto the urethane surface. The bottom surface is treated with a hot melt adhesive that is protected with a paper peel-off backing.
An analysis of the sample by our Customs laboratory was consistent with your description.
The importer indicated that the road tape will be used to form temporary lane markings, e.g., at repair or construction sites. It will be available in yellow, orange, white and black. The standard dimensions are
10, 12 and 15 cm in width and 100 meters in length, and in special dimensions of 20 to 50 cm in width and 25 to 100 meters in length.
Counsel for Trelleborg Rubore, Inc., the protestant, submitted additional information, the pertinent parts of which follow. The product is imported in rectangular-shaped strips. The white and yellow tapes consist of unvulcanized rubber tape coated with pigmented polyurethane coating, reflective spherical glass (“ballotini”), glass grains for skid resistance, a rubber-based pressure-sensitive adhesive and a small amount of silicone release agent, which is applied to the adhesive to permit the tape to be unrolled without sticking to itself. The yellow tape and white tape are used to provide temporary lines on road surfaces during road construction. Due to the ballotini, the white and yellow forms are reflective. The black tape is not coated with ballotini or pigmented polyurethane coating. It is used to cover existing painted lines on roads. The black tape is coated with glass or aluminum oxide grains for skid resistance. The orange tape is not imported into the United States.
In addition, counsel submitted charts demonstrating that the unvulcanized rubber comprises 60% or more of the weight and 49% or more of the value of this product, along with arguments supporting classification in heading 4005, HTSUS, which is the provision for unvulcanized rubber.
In NY F87908, dated October 18, 2000, the Customs National Commodity Specialist Division had stated that none of the components of the road tape imparted the essential character of the product. Thus, it was classified according to General Rule of Interpretation 3(c), which requires classification in the heading that occurs last in numerical order among those which equally merit consideration, in heading 7018, HTSUS, which provides for glass beads. We reconsidered that ruling and found it to be incorrect. We revoked NY F87908 by HQ 965678, dated July 5, 2002.
ISSUE:
Whether removable road tape is classifiable according to GRI 3(b), and, if so, what is the essential character.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that articles are to be classified by the terms of the headings and relative Section and Chapter Notes. For an article to be classified in a particular heading, the heading must describe the article, and not be excluded therefrom by any legal note. In the event that 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 understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
4005 Compounded rubber, unvulcanized, in primary forms or in plates, sheets or strip:
Other:
4005.91.00 Plates, sheets, and strip
* * *
7018 Glass beads, imitation pearls, imitation precious or semiprecious stones and similar glass smallwares and articles thereof other than imitation jewelry; glass eyes other than prosthetic articles; statuettes and other ornaments of lamp-worked glass, other than imitation jewelry; glass microspheres not exceeding 1 mm in diameter:
7018.90 Other:
7018.90.50 Other
GRI 1 provides that articles are to be classified by the terms of the headings and relative Section and Chapter Notes. For an article to be classified in a particular heading, the heading must describe the article, and not be excluded therefrom by any legal note. The removable road tape is a combination of four or more materials, consisting partly of unvulcanized rubber strip, classifiable in heading 4005, HTSUS, partly of glass beads classifiable in heading 7018, HTSUS, and partly of various other components, each classifiable in different headings. As such, the items are not specifically provided for in any one heading. For tariff purposes, they constitute goods consisting of two or more substances or materials, which are not classified according to GRI 1.
GRI 2(b) requires that the "classification of goods consisting of more than one material or substance shall be according to the principles of rule 3." GRI 3(a) states, in pertinent part, “when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods . . . those headings are to be regarded as equally specific . . ..” As each heading refers to part only of the road tape, they are considered equally specific. The product cannot be classified according to GRI 3(a).
GRI 3(b) provides for “composite goods consisting of different materials or made up of different components . . .which cannot be classified according 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.” Explanatory Note VIII to GRI 3(b), states, “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 unvulcanized rubber comprises at least 60% of the weight of the product and contributes the majority of value to the product. It makes up the bulk of the product (i.e. mass) and it is the base material, or substrate, of the product. Without it, there would be no tape. The rubber component is necessary regardless of time of day, or whether making new lines or covering existing lines. Moreover, it is the rubber material that imparts the qualities, such as durability, necessary for the tape to be used as intended. According to the nature of the rubber in the tape, its bulk, quantity, value, and to the role of the rubber in relation to the use of the tape, the rubber imparts the essential character of the tape for tariff purposes.
The ballotini, the glass grains, and polyurethane coating contribute to the functions of the tapes, but they are merely features. NY F87908 found each component merited equal consideration. However, the ballotini, used for reflective purposes at night, is not necessary for daytime use, and the black tape is made without ballotini. Therefore, the ballotini does not merit equal consideration. Further, a composite good cannot be classified under a heading that does not describe any part of the good. The black tape cannot be classified in heading 7018, HTSUS. Neither can the yellow and white tape because, again, the ballotini does not merit equal consideration. As it does not merit equal consideration, and as the rubber does impart the essential character of the product, GRI 3(c) was erroneously applied. This good is classifiable according to GRI 3(b) in subheading 4005.91.00, HTSUS, which provides for “Compounded rubber, unvulcanized, in primary forms or in plates, sheets or strip: other: plates, sheets, and strip.” See HQ 965678, dated July 5, 2002
HOLDING:
“Trelleborg Removable Road Tape” is classifiable subheading 4005.91.00, HTSUS, which provides for “Compounded rubber, unvulcanized, in primary forms or in plates, sheets or strip: other: plates, sheets, and strip.”
The protest should be GRANTED.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division