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HQ 959152

November 20, 1997

CLA-2 RR:CR:GC 959152 ptl


TARIFF NO.: 4008.29.20

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.


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.


What is the proper classification of rubber flangeway fillers?


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.


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.


John Durant, Director
Commercial Rulings Division

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