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HQ 088765


February 26, 1993

CLA-2 CO:R:C:T 088765 CC

CATEGORY: CLASSIFICATION

TARIFF NO.: 4016.95.0000

District Director of Customs
United States Customs Service
P.O. Box 17423
Washington, D.C. 20041

RE: Application for Further Review; Protest number 5401-90- 000062; Lampe Lifter air cushions; inflatable air cushion; textile; woven textile; rubber; textile coated, covered, or laminated.

Dear Sir:

This protest was filed against your decision in the liquidation of various entries involving the importation of Lampe Lifter air cushions produced in Germany.

FACTS:

The merchandise at issue was entered through Dulles International Airport in Washington, D.C. in three transactions dating from April 19, 1990 to June 4, 1990. At the time of entry, the merchandise was classified under heading 6307 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) as an article made of textile material. The goods were liquidated during the period from August 24, 1990 to September 21, 1990 under the same heading. On October 9, 1990, a protest was timely filed against the classification and liquidation of the entries. At the same time, an application for further review of the protest was also filed. The protest was forwarded to Customs Headquarters under the provisions of Section 174.26(b)(1) of the Customs Regulations.

At issue is an article referred to as a Lampe-Lifter. The Lampe-Lifter is a bladder-like item which acts as a jack or lifting device when inflated with compressed air. The sample measures approximately 60 centimeters by 50 centimeters and is less than 1 centimeter thick when deflated. Literature accompanying the protest submission indicates that very large Lampe-Lifters, capable of raising objects weighing up to 22 tons are also available. All of the Lampe-Lifters consist of a bladder or cushion made from a rubber and textile composite material. The precise manufacturing method is not disclosed. However, the 'sandwiched' textile and rubber layers are clearly evident when the material is viewed on edge. The edges of the bladder are sealed to form an air tight container.

The application for further review states that the bladder material is composed of a woven kevlar (aramid fiber) fabric which has been embedded in neoprene rubber for reinforcing purposes. The rubber is vulcanized (i.e., it has undergone a physiochemical change through combination with sulphur and heat), but is not hard rubber. In a submission which accompanied the protest, counsel for the importer asserts that the textile component comprises 25 percent of the weight of the material and that the rubber comprises the remaining 75 percent. Counsel also stated during a telephone conversation that the textile/rubber weight relationship was approximately the same regardless of the size of the Lampe-Lifter.

You submitted the following information concerning the models concerned in the protest and their weights in grams per meter squared:

Model G/m2

15 2310
30 2167
35 1703
10 3615
25 4240
50 2255
14510 6568
14522 7557
14533 6639
14542 7312
14566 8459

The Customs Laboratory has examined the sample provided with the application for further review, designated by you as Model No. 10. A central area, measuring 19-1/2 inches by 25-1/4 inches, and composed of two pieces of reinforced rubber material, was found to weigh 4215.5 grams per square meter (g/m2) and 4255.9 g/m2 respectively. In addition, this area was found to be composed of 75 percent rubber and 25 percent textile fibers.

ISSUE:

Is the Lampe-Lifter cushion an article of textile or an article of rubber?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the harmonized system 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 relevant 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 GRI's may be applied, taken in order.

In a memorandum submitted with the Protest, counsel for the importer argues that the Lampe-Lifter should be classified as an article of rubber based on the product's essential character. However, counsel's reliance on an essential character determination is misplaced. The essential character criteria are used to classify products under GRI 3. We believe that this product may be classified on the basis of the headings and legal notes to the HTSUSA, without resorting to GRI 3 and essential character.

We find no heading in the tariff nomenclature which specifically describes this product by name. However, both the provisions for rubber products and the provisions for textile articles contain headings for classifying "articles of . . ." rubber or textiles, respectively. The Lampe-Lifter is made of or from the rubber and textile composite material described above. Therefore, to classify an article "of" such material, we must first classify the material itself.

The classification of rubber and textile combinations is governed by several legal notes: Note 2(a) to Chapter 40, Note 1(ij) to Section XI, and Note 4 to Chapter 59, HTSUSA. Note 1(ij) to Section XI, HTSUSA, provides that any textile fabric impregnated, coated, covered or laminated with rubber, and classifiable in Chapter 40, HTSUSA, is excluded from Section XI. Likewise, Chapter Note 2(a) to Chapter 40, HTSUSA, provides that any material classifiable as a textile of Section XI, HTSUSA, is excluded from those provisions. The intent is to classify those combinations which are rubber in nature in Chapter 40, and those which are textile in nature in Section XI, HTSUSA. Chapter 59 provides for material described as "rubberized textile fabrics." Chapter 59, Legal Note 4, HTSUSA, states, in pertinent part that the expression "rubberized textile fabric" means:

(a) Textile fabrics impregnated, coated, covered or laminated with rubber:

(i) Weighing not more than 1,500 g/m2; or

(ii) Weighing more than 1,500 g/m2 and containing more than 50% by weight of textile material.

In addition, the Harmonized Commodity Description and Coding System, Explanatory Notes, the official interpretation of the HTSUSA at the international level, states concerning the classification of textile and rubber combinations at page 580 the following:

The classification of rubber and textile combinations is essentially governed by Note 1 (ij) to Section XI. Note 3 to Chapter 56 and Note 4 to Chapter 59, and as regards conveyor or transmission belts or belting by Note 8 to Chapter 40 and Note 6(b) to Chapter 59. The following products are covered by this Chapter [Chapter 40]:

...

(c) Textile fabrics (as defined in Note 1 to Chapter 59) impregnated, coated, covered or laminated with rubber, weighing more than 1500 g/m2 and containing 50% or less by weight of textile material.

The rubber and textile material is clearly a "fabric impregnated [or] coated ..." with rubber. As noted, the Customs Laboratory has tested material from the sample and determined that it weighs more 1,500 g/m2. Thus, according to the relevant legal notes and Explanatory Notes, the sample is classifiable as rubber of Chapter 40.

There are ten other models of Lampe Lifters, besides the model tested, that are the subject of this protest. Only four of them weigh less in grams per meter squared than Model 10, the tested model. In addition, the information you have provided to us indicates that all of the models weigh more than 1500 g/m2 and contain 50 percent or less of textile material. Accordingly, assuming that this information is correct, all of the models are classifiable in Chapter 40.

HOLDING:

The merchandise at issue is classified under subheading 4016.95.0000, HTSUSA, which provides for other articles of vulcanized rubber other than hard rubber, other, other inflatable articles. The rate of duty is 4.2 percent ad valorem.

The protest should be allowed. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director

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