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HQ 962389





October 25, 1999

CLA-2 RR:CR:GC 962389 PH

CATEGORY: CLASSIFICATION

TARIFF NO.: 4016.99.60

Chief, Residual Liquidation and
Protest Branch
U.S. Customs Service
6 World Trade Center, Room 761
New York, NY 10048-0945

RE: Protest 1001-98-103699; Rubber Conveyor Flaps

Dear Sir:

This is our decision on protest 1001-98-103699, against your classification under the Harmonized Tariff Schedule of the United States (HTSUS) of certain neoprene rubber flaps used with bucket conveyor systems. Samples were provided.

FACTS:

The merchandise is invoiced as neoprene flaps. The sample consists a piece of black, relatively soft rubber approximately 2" wide and 1/8" to 3/16" thick between two rolls or cylinders of rubber, one hollow and the other solid, approximately 1/2" in diameter. According to promotional literature submitted with the protest, the flaps are used to fill the gaps between, and connect leading and trailing buckets in a bucket conveyor system.

The merchandise was entered in 1997 with classification in subheading 8431.39.80, HTSUS, as other parts of elevators and conveyors. The entry was liquidated on July 17, 1998, with classification in subheading 4016.99.60, HTSUS, as other articles of vulcanized rubber other than hard rubber.

The importer filed this protest with Customs on September 16, 1998, against the classification of the merchandise. Citing Note 2(b), Section XVI, HTSUS, the protestant contends that the flaps are solely for use on its bucket conveyor systems, they do not transmit power or act as belts or belting in the bucket conveyor systems, and should be classified in subheading 8431.39.80, HTSUS.

ISSUE:

Whether the rubber conveyor flaps are classifiable as other parts suitable for use solely or principally with the machinery of headings 8425 to 8430, of elevators and conveyors, in subheading 8431.39.80, HTSUS, or as other articles of vulcanized rubber other than hard rubber, in subheading 4016.99.60, HTSUS.

LAW AND ANALYSIS:

Initially, we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514(c)(3)(A)) and the matter protested is protestable (see 19 U.S.C. 1514(a)(2) and (5)).

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRIs), taken in order. 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 on the contracting parties, 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. 8980, published in the Federal Register August 23, 1989 (54 F.R. 35127, 35128).

The 1997 HTSUS headings and subheadings under consideration are as follows:

4016 Other articles of vulcanized rubber other than hard rubber: Other:
4016.99 Other:
Other:
Other:
4016.99.60 Other

8431 Parts suitable for use solely or principally with the machinery of headings 8425 to 8430: Of machinery of heading 8428:
8431.39 Other:
8431.39.80 Other

Note 1(a), Section XVI (which includes Chapter 84, HTSUS), HTSUS, provides that "[t]his section does not cover ... [t]ransmission, conveyor or elevator belts or belting, of plastics of chapter 39, or of vulcanized rubber (heading 4010); or other 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)[.]"

Note 2, Section XVI (which includes Chapter 84, HTSUS), HTSUS, provides in pertinent part:

2. Subject to note 1 to this section, note 1 to chapter 84 and to note 1 to chapter 85, parts of machines ... are to be classified according to the following rules:

(a) Parts which are goods included in any of the headings of chapter 84 and 85 ... are in all cases to be classified in their respective headings;

(b) Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading ... are to be classified with the machines of that kind or in heading ... 8431 ... as appropriate. ...

The article under consideration is of a kind used in machinery or mechanical or electrical appliances or for other technical uses. According to the protestant, that is the sole or only use of the article. The article is of vulcanized rubber other than hard rubber. Therefore, pursuant to Note 1(a), Section XVI, HTSUS, the article is excluded from classification in Section XVI (which includes heading 8431).

The protestant contends that the article is classifiable in heading 8431 pursuant to Note 2, Section XVI, HTSUS, because it is used solely in a bucket conveyor system. That is, pursuant to Note 2(b), Section XVI, HTSUS, the protestant contends that the article is a part "... suitable for use solely or principally with a particular kind of machine [and is] to be classified ... in heading ... 8431 ...."

We do not disagree that the article is suitable for use solely or principally with a particular kind of machine (i.e., a bucket conveyor system classifiable in heading 8428, HTSUS). However, the rules for classification of parts in Note 2, Section XVI, HTSUS, are "[s]ubject to note 1 to [Section XVI]" and, as demonstrated above, the article is excluded from classification in Section XVI by that Note. See also, General EN for Section XVI, (II) PARTS, which notes that the rules regarding classification of parts in Note 2, Section XVI, HTSUS, are "... subject, of course, to the exclusions mentioned in [Note 1]."

The article under consideration is excluded from classification in Section XVI, HTSUS, by Note 1 of that Section. Therefore, even though it may otherwise meet the requirements in Note 2, Section XVI, HTSUS, for classification as a part of heading 8431, it may not be classified in that heading, because Note 2 is subject, or defers, to Note 1 (i.e., Note 1 controls). The article is classifiable as other articles of vulcanized rubber other than hard rubber, other, in subheading 4016.99.60, HTSUS. This is consistent with other rulings of this office (see, e.g., Headquarters Ruling (HQ) 083970 dated July 14, 1989; HQ 088325 dated March 27, 1991; and HQ 956900 dated July 10, 1995).

HOLDING:

The rubber conveyor flaps are classifiable as other articles of vulcanized rubber other than hard rubber, other, in subheading 4016.99.60, HTSUS.

The protest is DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed, with the Customs Form 19, 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 mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the 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.

Sincerely,
John Durant, Director,
Commercial Rulings Division


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