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HQ 962452




April 11, 2000

CLA-2 RR:CR:GC 962452 gah

CATEGORY: CLASSIFICATION

TARIFF NO.: 4008.11.50

Port Director
U.S. Customs Service
200 East Bay Street
Charleston, SC 29401

RE: Protest 1601-98-100147; paper-covered rubber carpet underlay

Dear Port Director:

This is our decision on protest 1601-98-100147 timely filed by counsel, on behalf of Pathways International, Inc., on November 20, 1998, against your decision regarding the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of paper-backed rubber carpet underlay. The entries were liquidated on September 11, 1998.

FACTS:

The merchandise is used as an underlay for carpeting. It is a rectangular sheet of rubber material backed with a layer of kraft paper. The rubber component is made of copolymers of styrene and butadiene, and is cellular in nature. The surface of the rubber is grooved. The kraft paper is stitched in rows with fiberglass thread. The paper is heat sealed to one side of the rubber, and in that process the fiberglass thread is sealed to the rubber as well. The goods are imported on rolls.

Following two notices of action, Customs classified the subject merchandise at liquidation in subheading 4008.11.50, HTSUS, which provides for plates, sheets, strip, of vulcanized rubber other than hard rubber, of cellular rubber, other.

The protestant advocates classification of the subject merchandise in subheading 4016.10.00, HTSUS, which provides for other articles of vulcanized rubber other than hard rubber, of cellular rubber.

ISSUE:

Is the carpet underlay properly classified as plate, sheet or strip of rubber in heading 4008, HTSUS, or as other articles of rubber in heading 4016, HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States (HTSUS) is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. 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. See T.D. 8980, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Chapter 40, note 9, HTSUS, states in pertinent part, that:

In heading4008, the expressions “plates”, “sheets” and “strip” apply only to plates, sheets and strip 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 cut to shape or further worked.

Heading 4008 covers plates, sheets, stripof vulcanized rubber other than hard rubber. The EN indicates that the products of this heading may be surface-worked (e.g., printed, embossed, grooved, channelled, ribbed); they may also be plain or colored (either in the mass or on the surface). The heading covers rubber flooring material in the piece Combinations of vulcanized rubber with other materials (other than textile materials) remain classified in this heading provided they retain the essential character of rubber. The EN exclusion (a) states that the heading excludes:

Plates, sheets and strip, whether or not surface-worked (including square or rectangular articles cut therefrom), with bevelled or moulded edges, or with rounded corners, openwork borders or otherwise worked, or cut into shapes other than rectangular (including square) (heading 40.14, 40.15 or 40.16)

Heading 4016 covers other articles of vulcanized rubber other than hard rubber. The EN (2) specifies that the heading includes floor coverings and mats not further worked than surface-worked.

Counsel for the protestant claims that the combination of rubber and paper at issue is not a “surface-working”, but a “further working”, within the meaning of note 9 to chapter 40. If the kraft paper sealed to one surface of the rubber sheet is a surface-working, then note 9 directs classification in heading 4008. If not, the goods are considered further worked and classified in heading 4016 or as paper in chapter 48. Whether the goods are cut to shape other than into rectangles is not at issue.

Counsel claims that the addition of paper to rubber is by definition a further working, implying that it is not a surface working. Neither “surface-working” nor “further working” is defined in the tariff. The common meaning of “surface-working” indicates the action of operating or performing work on, or manipulating, the outermost boundary of a material. See 2 Compact Ed., Oxford English Dictionary 3173, 3820 (1987). We conclude that the common meaning of “surface worked” does not exclude attaching a layer to the surface of the primary material, rubber in this case. See also, HQ 084938, dated August 22, 1989 and HQ 955597, dated May 31, 1994, where Customs determined that the term “surface-worked” included two or three layers of plastic laminated together.

The heading 4008 EN gives examples of surface-working as printed, embossed, grooved, channelled and ribbed. It further indicates that plate, sheet, or strip of rubber combined with textile is within the scope of the heading. This can only mean that such combinations are within the definition of “surface-worked” of note 9 to chapter 40.

Counsel asserts that paper combined with rubber is unique, and must be treated differently than textile combined with rubber. Counsel notes that the EN suggests that textile may be present on one surface of rubber for reinforcement purposes only. In the instant product, the paper is creped, stitched and sealed to the rubber. Counsel implies that this working of the paper renders it for more than reinforcement purposes. Rather, the paper is present for texture, appearance and to make the rubber easier to use.

Assuming, arguendo, these claims are factually correct, the EN does not restrict heading 4008 to non-textiles which provide only mere reinforcement to the rubber. Rather, it indicates only that rubber and other combinations remain within the heading if the goods retain the essential character of rubber. Thus, the drafters of the Harmonized System clearly intended that rubber and paper combinations could fall within heading 4008, meet the terms of “surface-working”, and thus the terms of note 9.

In the instant product, the paper serves to enhance the strength of the rubber and to make the whole easier to handle. Within the common meaning of the term, the paper sealed to one side of the rubber is a surface-working of the rubber sheet. The sheet is carpet underlay, which provides cushioning and sound and heat insulation to carpeting, characteristics provided by the rubber. The product retains the character of a rubber sheet of heading 4008. It is precisely the type of rubber flooring material that the drafters of the Harmonized System intended to capture within heading 4008. See EN at page 637.

Counsel claims that in HQ 088325, dated March 27, 1991, Customs found a two and a three layered rubber product to be further worked, not surface-worked. The goods, called Low-Fric bars, were profile shapes constructed of rubber with a plastic layer on one side, and in one style, an aluminum layer of reinforcement on the other. We found these bars not classifiable in heading 4008 within the meaning of note 9, describing the goods without defining what attribute led to a finding that they were further worked. On reviewing the file in HQ 088325, we note that the description of the goods given did not fully describe the processing of the low-fric bars. The bars were created in a series of operations that combined a metal extrusion with a block of rubber and a layer of plastic in a mold as well as processes which formed a hole extending from one end of the bar to the other. For these reasons, the goods do not meet the terms of note 9 for profile shapes of heading 4008. We do not believe HQ 088325 supports a finding that the instant goods are further-worked.

Counsel maintains that certain Customs rulings involving rubber layered with another product support its interpretation of further worked. Customs has ruled that the term “further working” covers hemming, while cut to shape has included cutting holes, rounded edges, or interlocking edges. Processing such as gluing sheets together and which results in a sheet does not cause the product to be classifiable as other than a sheet. See HQ 086258, dated July 19, 1990; HQ 083513, dated January 9, 1990; NY 877399, dated September 10, 1992; and HQ 959151, dated June 24, 1996. The facts in each case provide no support for counsel’s contentions in the instant matter.

HOLDING:

The carpet underlay in sheet form is classified in subheading 4008.11.50, HTSUS, which provides for plates, sheets, strip, rods and profile shapes, of vulcanized rubber other than hard rubber, of cellular rubber, plates, sheets and strip, other.

The protest should be DENIED. In accordance with Section 3(A)(11)(b) of Customs Directive 099 3550065, 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,

John Durant, Director
Commercial Rulings Division

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