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HQ 089019


August 7, 1991

CLA-2 CO:R:C:T 089019 CRS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6807.10.0000; 6807.90.0010

Ms. Denise Roy
Tariff Administrator
Tariff Programs
Revenue Canada
Customs and Excise
Ottawa, Canada K1A 0L5

RE: Roofing material consisting of nonwoven substrate completely enveloped in a heavy layer or coating of asphalt classifiable as article of asphalt. HRL 084035. Goods originating in Canada.

Dear Ms. Roy:

This is in reply to your letter dated March 25, 1991, on behalf of IKO Industries, Ltd, concerning the classification of roofing boards under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Samples were submitted.

FACTS:

The merchandise in question consists of modified bitumen roofing membranes from Canada known commercially as Armourplast APP and Modiflex/Torchflex SBS. These products are manufactured in various thicknesses but are otherwise roughly similar, being comprised of a nonwoven polyester reinforcing mat or substrate coated on both sides with Atactic Polypropylene (APP) or Styrene Butadiene Styrene (SBB) modified bitumen. In some instances, e.g., Armourplast 45 Cap, ceramic-clad mineral granules are embedded in the upper surface of the bitumen membranes. A protective film of thin, light polypropylene film may be bonded to the underside of the membranes.

The membranes are manufactured in the following thicknesses: Armourplast 45 Cap, 4.5 mm; Armourplast 40 Classic, 4.0 mm; Armourplast 35 Classic, 3.5 mm; Armourplast Roofwalk, 8.5 mm; Modiflex MP Cap, 4.0 mm; Modiflex MF-95-SS-Base, 2.2 mm; Modiflex MF-95-FS-Base, 2.2 mm; Modiflex MP-180-FS-Base, 2.2 mm; Torchflex TP Cap, 4.0 mm; Torchflex TP-180-FF-Base, 3.0 mm.

In Headquarters Ruling Letter (HRL) 083541 dated November 22, 1989, a roofing product 3 mm thick consisting of a single ply nonwoven polyester substrate coated on both sides with asphalt, which itself was coated on one side with a layer of stone chips, was classified in heading 5603, HTSUSA. Similarly, in HRL 087565 dated November 13, 1990, two nonwoven membranes, 3 mm and 4 mm thick, coated on both sides with an elastomeric bitumen, were classified in heading 5603. You have asked that we reconsider HRL 083541 and, by implication, HRL 087565.

ISSUE:

Whether roofing membrane consisting of a textile substrate embedded in asphalt is classifiable as a coated or covered felt or as an article of asphalt.

LAW AND ANALYSIS:

In this case, there are two headings in which the instant merchandise may be classified: heading 5603; and heading 6807. Heading 5603, HTSUSA, provides for nonwovens, whether or not impregnated, coated, covered, or laminated. The Harmonized Commodity Description and Coding System, Explanatory Notes (EN), while not legally binding constitute the official interpretation of the Harmonized System at the international level. EN 56.03, 775, provides that heading 5603 covers:
certain "roofing felts" in which the textile fibres are agglomerated with tar or similar substances, and certain products known as "bitumen felts" obtained in the same way but incorporating a small quantity of cork fragments.

On this basis we held in HRL 083541 and HRL 087565 that nonwoven substrates embedded in asphalt were classifiable in heading 5603.

In contrast, heading 6807, HTSUSA, provides for articles of asphalt or of similar material (for example, petroleum bitumen or coal tar pitch). EN 68.07 provides in pertinent part that the heading includes:

(2) Roofing boards consisting of a substrate (e.g., of paperboard, of web or fabric of glass fibre, of fabric of man-made fibre or jute, or of aluminium foil) completely enveloped in, or covered on both sides by, a layer of asphalt or similar material.

The products in question are made from a layer of nonwoven fabric completely enveloped in asphalt bitumen.

In addition to HRL 083541 and HRL 087565, HRL 084035 dated December 18, 1990, also concerned the classification of roofing products, specifically, roll roofing and strip shingles consisting of a felt substrate (paper fibers and wood particles) coated and impregnated with asphalt and covered on one side with crushed gravel. The issue was whether these products were properly classifiable as asphalted paper of heading 4811, or as articles of asphalt of heading 6807. Citing EN 68.07 we stated in pertinent part at 6:

Although the term "roofing board" is not specifically defined . . . the above-discussed language from the Explanatory Notes clearly indicates that the heading 6807 provision for "articles of asphalt" contemplates and encompasses within its coverage products consisting of a substrate that is completely enveloped in a heavy or thick (as opposed to light or superficial) layer or coating of asphalt and used for roofing. (This analysis does not include consideration of a substrate completely enveloped in a heavy or thick layer or coating of asphalt while also containing on one surface a layer of mineral granules in support of the asphalt's weather-resistant properties. Of course, such a product would be something more than merely "asphalted paper and paperboard," and could only be classified as that of an "article of asphalt" under heading 6807.

ALthough the competing provision here is heading 5603 rather than heading 4811, the principle of HRL 084035, viz., that a product consisting of a substrate that is completely enveloped in a heavy or thick layer of asphalt is encompassed by the terms of heading 6807, is applicable to the instant merchandise. The roofing membranes are made from a nonwoven substrate completely enveloped in asphalt; accordingly, they are classifiable in heading 6807.

The articles classifiable in heading 5603, in contrast, are fabrics to which a light or superficial coating has been applied. HRL 084035 at 6. Indeed, this is suggested by the language of EN 56.03 which states that heading 5603 covers roofing felts where textile fibres are agglomerated with tar or similar substances, i.e., clustered or gathered together, but which nevertheless remain visible through the coating.

General Note 3(c)(vii), HTSUSA, provides that goods originating in the territory of Canada are eligible for the tariff treatment set forth in the "Special" subcolumn of the HTSUSA, in accordance with section 201 of the United States- Canada Free-Trade Agreement Implementation Act of 1988. The roofing products at issue are wholly produced in Canada and therefore qualify as goods originating in Canada. General Note

HOLDING:

If imported in rolls, the roofing membranes in question are classifiable in subheading 6807.10.0000, HTSUSA, under the provision for articles of asphalt or of similar material (for example, petroleum bitumen or coal tar pitch); in rolls. As goods originating in Canada, the roofing membranes are dutiable at the rate of 1.9 percent ad valorem. The general rate of duty for products in the above subheading is 4.9 percent ad valorem.

If imported other than in rolls, the roofing membranes are classifiable in subheading 6807.90.0010, HTSUSA, under the provision for articles of asphalt . . . ; other; articles of a kind used for roofing or siding. As goods originating in Canada, the roofing membranes are dutiable at the rate of 2.1 percent. The general rate of duty for articles classifiable in this subheading is 5.3 percent ad valorem.

Sincerely,


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