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HQ 955372

May 4, 1994

CLA-2 CO:R:C:T 955372 HP


TARIFF NO.: 4008.21.0000

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.


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.


Whether the engraving rubber is considered rubber or textile under the HTSUSA?


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.


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.


John Durant, Director
Commercial Rulings Division

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