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HQ 959722




MAY 15, 1997

CLA-2 RR:TC:MM 959722 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8431.49.90

Karen Bysiewicz, Esq.
Coudert Brothers
1114 Avenue of the Americas
New York, NY 10036-7703

RE: Rubber Track; Rubber Coated Steel Track for Use With Excavators, Tractors, Tracked Carriers, and Agricultural and Construction Machinery; Outer Rubber Casing Reinforced With Steel Cord Combined With Metal Embeds; Composite Good, GRI 3(c); Heading 8431, Parts, Sole or Principal Use; THK America, Inc. v. U.S.; Heading 4012, Tires of Rubber

Dear Ms. Bysiewicz:

Your ruling request, dated August 7, 1996, to the Director, National Commodity Specialist Division, New York, on behalf of Bridgestone Engineered Products Company, Inc.(BEP), has been referred to this office. Your inquiry concerns the tariff classification of merchandise called Rubber Tracks. In preparing this ruling we considered your additional submissions of April 28 and May 2, 1997, and the oral arguments you made at a meeting in our office on April 30, 1997.

FACTS:

Rubber Track denotes a rubber coated steel track for use on excavators and dozers, tracked carriers, construction equipment, agricultural machinery and snowfield vehicles. Advertised as an effective blend of rubber tire and steel track technology, the Rubber Track consists of a vulcanized rubber outer portion or casing with reinforced steel cords evenly spaced along its width and a number of anvil-shaped steel flights or embeds affixed to the underside. The steel-reinforced rubber portion, available in a variety of lug patterns, is in direct contact with the ground to provide traction, while the steel embeds are configured to engage with the teeth of sprockets. The Rubber Track effects the movement of a tracked vehicle as power from the engine initiates - 2 -
rotation of the sprocket wheels and the rubber casing to which they attach. At the same time, Rubber Tracks increase the effectiveness and versality of tracked vehicles in wet and soft terrain.

You maintain that the Rubber Track is a composite good made up of different components which is to be classified, pursuant to General Rule of Interpretation (GRI) 3(b), Harmonized Tariff Schedule of the United States (HTSUS), as if consisting of that component which imparts the essential character to the whole. For reasons which follow, you maintain that the essential character is imparted by the steel components. You state the same result obtains under GRI 3(c), in the event no essential character determination can be made. You state that over 80 percent of the Rubber Tracks imported into the United States are used on excavators of the type provided for in heading 8429, thus establishing their principal use. As an article of steel, and a part solely or principally used on excavators, you conclude that the Rubber Track is provided for in heading 8431. Alternatively, you maintain that if the Rubber Track is found to be an article of rubber, then it qualifies as a tire of heading 4012.

The provisions under consideration are as follows:

4012 ...solid or cushion tires...of rubber:

4012.90 Other:

4012.90.10 Other...Solid or cushion tires...Free

4016 Other articles of vulcanized rubber other than hard rubber:

Other:

Other:

4016.99.60 Other...3.6 percent ad valorem

8431 Parts suitable for use solely or principally with the machinery of headings 8425 to 8430:

8431.49 Other:

8431.49.90 Other...1 percent ad valorem

ISSUE:

Whether the essential character of the Rubber Track is imparted by the rubber casing or the base metal components.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. 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. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Initially, the provision in heading 8431 is governed by the appropriate section and chapter legal notes. Section XVI, Note 1(a), HTSUS, states in relevant part that the section does not cover articles of a kind used in machinery or mechanical or electrical appliances or for other technical uses, of vulcanized rubber other than hard rubber (heading 4016). Therefore, if the Rubber Track is considered an article of vulcanized rubber for tariff purposes, it cannot be classified in heading 8431, or in any other provision of Chapter 84 or Chapter 85.

We agree that the Rubber Track is prima facie classifiable under two or more headings, each of which describes part only of the good. GRI 3, HTSUS, states in relevant part that composite goods made up of different components are to be classified as if consisting only of that component which gives them their - 4 -
essential character insofar as this criterion is applicable, or when goods can not be so classified, in the heading which occurs last in numerical order among those which equally merit consideration. Relevant ENs for GRI 3 state, at p. 4, that the factor or factors which determines essential character will vary as between different kinds of goods. It may be determined by the nature of the component, its bulk, quantity, weight or value, or by its role in relation to the use of the goods.

You contend in this case that the steel components impart the essential character because the steel predominates both by weight and volume over the rubber; the steel cord adds strength and durability to the rubber casing, which not only increases the weight-bearing capacity of the Rubber Track but prevents the sprocket wheels from tearing through the rubber; and, the steel embeds allow the rubber casing to engage with the teeth of the sprocket wheel and facilitate transfer of force from the drive sprockets to permit forward movement of the machine; and, finally, while the Rubber Track could function without the rubber portion, it cannot function effectively without the embeds and reinforcing cords of metal.

On the other hand, while not determinative in ascertaining the classification of goods, an importer's descriptive literature has probative value of the way he views the goods and the market he is trying to reach. See THK America, Inc. v. United States, 17 CIT 1169 (1993). In comparing the Rubber Track to steel tracks and wheels, the advertising materials you have submitted list the following under the caption ADVANTAGES: less rutting of soft ground, less vibrations and noise than steel tracks, higher attainable speeds, low ground pressure and superior traction for more pulling power. These all relate to the outer rubber casing. In using the Rubber Track the following are listed under the heading PRECAUTIONS: controlled tension to prevent detracking, unfavorable terrain and unsafe driving techniques can damage the lug (rubber) side, or cause it to crack; avoiding exposure to direct sunlight and operation in a suitable temperature range. Once again, all of these factors relate to the condition of the outer rubber casing. Finally, the literature indicates the Rubber Track is offered with multiple lug patterns within several series - agricultural, construction and snow removal - which dedicates a machine or vehicle to a service application in more than one terrain. Even the name RUBBER TRACK suggests that BEP considers the rubber portion to be significant. - 5 -

In summary, the evidence of record compels us to conclude that the outer rubber casing and the metal embeds and cords are equally important components, neither of which can be considered pivotal. Each contributes significantly to the overall functioning of the Rubber Track. For these reasons, we conclude that an essential character for the Rubber Track cannot be determined. Under GRI 3(c), the Rubber Track is to be classified as if consisting only of the base metal component.

The submitted literature states the Rubber Track is available in lug patterns which dedicate it to use with agricultural machinery, construction machinery and with snowfield vehicles. However, you maintain this is general-purpose advertising, and that as stated previously, over 80 percent of the Rubber Tracks imported into the United States are used on excavators. We note, however, that this claim as to principal use is undocumented in the record.

HOLDING:

Under the authority of GRI 1, the Rubber Track is provided for in heading 8431. Assuming sole or principal use can be established as claimed, it is classifiable in subheading 8431.49.90, HTSUS. The rate of duty is 1 percent ad valorem.

Sincerely,

John Durant, Director
Tariff Classification

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