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HQ 965139




July 2, 2002

CLA-2 RR: CR: TE 965139 ttd

CATEGORY: CLASSIFICATION

TARIFF NO: 5906.91.2000; 5907.00.1500

Port Director
U.S. Customs Service
1901 Cross Beam Drive
Charlotte, NC 28217

RE: Application for Further Review of Protest No. 1512-01-100028; Classification of Mouse Pad Rolls

Dear Sir or Madam:

This is a decision on the application for further review (AFR) of Protest Number 1512-01-100028, timely filed by C.J. International, Inc. on behalf of Central Ceramic Supply (Protestant), regarding the tariff classification of "Mouse Pad Rolls" from Taiwan. The AFR challenges the liquidation of one entry of "3 millimeter (mm) and 5 mm rolls of mouse pad material," liquidated on January 26, 2001, which were classified under subheading 4008.11.5000 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise at issue is described as two styles of "Mouse Pad Rolls" (mousepad material). The commercial invoices accompanying the Protest and Section III of the Protest state that the materials measure "5 millimeters (mm) in thickness and 3 mm in thickness" and 40 inches wide by 1192 inches long. A sample of the "5 mm" thick mousepad material was provided with this protest, however, no sample was provided for the "3 mm" thick material. The Customs laboratory determined that the "5 mm" mousepad material under consideration actually measured approximately 6.5 mm and its total weight to be approximately 2819 g/m2. The weight of the subject textile material measured approximately 194 g/m2. Each variety of the material consists of a layer of foamed or cellular black neoprene rubber approximately 5 mm thick or 3 mm thick, respectively, with a tight or compact circular (Jersey) white polyester knit fabric, approximately 1 mm thick laminated to the top or upper surface of the rubber. After importation, the Protestant states that the material will be die cut to various shapes and sizes and the fabric surfaces will be decorated with dye sublimation printing.

We note that the subject Protest indicates that a separate AFR (1512-01-100007) was previously submitted on January 16, 2001, involving the "5 mm" merchandise at this same port. Taking into consideration that the subject AFR covers the same "5 mm" merchandise, we are returning AFR 1512-01-100007 for action by the port in accordance with this decision. Nevertheless, this AFR involves questions of law or fact that have not been ruled upon and is therefore properly granted.

ISSUE:

What is the proper classification of the mousepad material?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be “determined according to the terms of the headings and any relative section or chapter notes.” In the event that 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 may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

Proper classification of the subject mousepad material rests on whether it is "of rubber" within Chapter 40, HTSUSA, or "of textile" within Chapter 59, HTSUSA. The General EN to Chapter 40 state that the classification of rubber and textile combinations is essentially governed by Note 1(ij) to Section XI and Note 4 to Chapter 59, HTSUSA. Note 1(ij) to Section XI, the section that covers textiles and textile articles, states that the section does not include, among other things, knit fabrics laminated with rubber, or articles thereof, of Chapter 40 HTSUSA. Note 4 to Chapter 59, HTSUSA, states that for the purposes of heading 5906, HTSUSA, which covers rubberized textile fabrics, the expression "rubberized textile fabrics" 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 percent by weight of textile material;

Regarding the scope of heading 5906, HTSUSA, Note 4 to Chapter 59 also explains that:

[t]his heading does not, however, apply to plates, sheets or strip of cellular rubber, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes (chapter 40), or textile products of heading 5811.

Within Chapter 40, heading 4008, HTSUSA, provides for "plates, sheets, strip of vulcanized rubber other than hard rubber." Item (A) of the EN to heading 4008, HTSUSA, states that the heading includes the following:

(A) Plates, sheets and strip of cellular rubber combined with felt, nonwovens, knitted or crocheted fabric or other textile fabric, provided that these textile materials are present merely for reinforcing purposes.

In this respect, unfigured, unbleached, bleached or uniformly dyed textile fabrics, when applied to one face only of these plates, sheets or strip, are regarded as serving merely for reinforcing purposes. Figured, printed or more elaborately worked textiles and special products, such as pile fabrics, tulle and lace, are regarded as having a function beyond that of mere reinforcement.

Thus, classification of the subject mousepad material is contingent on whether or not the polyester knit fabric laminated to the rubber is considered to serve more than reinforcing purposes.

In HQ 963460, dated February 16, 2000, Customs found an elbow support with textile fabric laminated to foam rubber to be made of a "rubberized textile fabric" classifiable in heading 5906, HTSUSA. In HQ 963460, we determined that the textile fabric provided a different visual appearance and tactile quality as well as a protective cover for the rubber and therefore, was present for more than mere reinforcement. Similarly, in HQ 081785, dated March 17, 1989, Customs ruled that a pair of shorts of synthetic rubber laminated on one surface to a nylon knit fabric were made of a fabric of heading 5906, HTSUSA. In that ruling, we found that the fabric would protect the rubber from possible abrasion and that the knit and color served the aesthetic purpose of giving the fabric an attractive appearance. Accordingly, Customs determined that the fabric was present for more than merely adding strength to the rubber and preventing it from tearing. Likewise, in HQ 083452, dated September 8, 1989, we classified fabric with a rubberized back coating in heading 5906, HTSUSA. In that ruling, the merchandise was composed of different color yarns with distinctive patterns and regarded as serving a purpose supplemental to "mere reinforcement."

The circular white polyester knit fabric laminated to the upper surface of the "3 mm" and "5 mm" mousepad materials under consideration, like the textile fabric in HQ 963460, possesses both visible and tactile characteristics that serve functions beyond that of mere reinforcement. According to the protest letter, the subject fabric was "engineered with a fabric top that supplies sufficient traction for optimal mouse performance." Moreover, the white knit fabric top is designed to be decorated with dye sublimation printing with designs, logos or advertisements. Accordingly, the subject fabric laminated to the upper surface of both the 3 mm and 5 mm rubber, like the fabrics cited in the rulings above, is present for more than merely reinforcing purposes. Therefore, the subject merchandise is not properly classified in heading 4008, HTSUSA, as sheets of vulcanized rubber other than hard rubber.

Having precluded classification in heading 4008, the next consideration is whether the subject merchandise is classified under heading 5906, HTSUSA, as a rubberized textile fabric, other than those of heading 5902.

After examining the sample supplied with this protest, the Customs laboratory determined that the mousepad material described as "5 mm" in thickness actually measured 6.5 mm in thickness. Its total weight measured approximately 2819 g/m2 and the weight of the subject textile material was determined to be approximately 194 g/m2. Thus, based on the laboratory analysis, the weight of the "5 mm" thick mousepad material is greater than 1500 g/m2 and the textile material weighs less than 50 percent. Therefore, according to Chapter 59, Note 4 (a)(i) and (ii), heading 5906, HTSUSA, is not a consideration for the "5 mm" thick mousepad material.

Concerning the mousepad material described as "3 mm" in thickness, a sample was not provided for laboratory analysis. However, based on our laboratory analysis of the "5 mm" sample, we calculated that the "3 mm" material may weigh less than 1,500 g/m2. Therefore, based on the textile fabric being present for more than reinforcing purposes and presuming that the "3 mm" mousepad material weighs less than 1,500 g/m2 and that the textile material is approximately 194 g/m2, it is within the scope of heading 5906, HTSUSA. Thus, based on our assumptions, the "3 mm" mousepad material is classified in heading 5906, HTSUSA, as a rubberized textile fabric, other than those of heading 5902.

Having determined the classification of the "3 mm" mousepad material, the next consideration is whether the "5 mm" mousepad material is properly classified in heading 5907, HTSUSA. Heading 5907, HTSUSA, covers, among other things, "Textile fabrics otherwise impregnated, coated or covered." The EN to heading 5907 provide the following:

This group covers textile fabrics (excluding those of headings 59.01 to 59.06), which have been impregnated, coated or covered, provided the impregnation, coating or covering can be seen with the naked eye;

The subject "5 mm" mousepad material is composed of a textile material (compact circular white polyester knit fabric) laminated with rubber on the bottom that is visible to the naked eye. Accordingly, the "5 mm" mousepad material is classified in heading 5907, HTSUSA. See NY E89072, dated November 8, 1999 and NY D84750, dated February 23, 1999.

The Protestant contends that subheading 4016.10.0000 applies to the subject merchandise, citing HQ 960129, dated December 15, 1997, wherein Customs ruled that a mouse pad of natural cellular rubber covered on one side with a knit fabric material is classified under subheading 4016.10.0000. We disagree.

Heading 4016, HTSUSA, provides for other articles of vulcanized rubber other than hard rubber. In HQ 960129, the mouse pads were already cut into a shape, measuring 11 inches by 8 1/2 inches and had rounded corners. In that ruling, the transparent plastic cover, which provided the working surface for the mouse, was glued along one side of the mouse pad, so that it could be lifted to place pictures or cards under it to serve as decoration. In this situation, unlike the mouse pad in HRL 960129, the mousepad material is not completed into mouse pads. Rather, the subject mousepad material is neither cut to shape nor decorated. Moreover, the subject rolls are not marked for future cutting.

The principal that the identity of an article must be fixed with certainty was discussed in The Harding Co. v. United States (hereinafter Harding), 23 CCPA 250, TD 48109 (1936). In Harding, brake lining material was imported in 100 foot rolls. It was to be used for brake lining for automobiles and was not commercially suitable for other uses. After it was fitted and riveted to a brake shoe it was cut off at one end. The brake lining material was not marked to indicate where it was to be cut because, although it could be used as brake linings for automobiles, it was used in various lengths. The court held that the imported merchandise was material for making automobile brake linings and not parts of automobiles. Moreover, in Bendix Mouldings, Inc. v. United States, (hereinafter, Bendix) 73 Cust. Ct. 201, 388 F. Supp. 1193 (1974), the court stated that "no matter how close the importation is to the finished article or how dedicated it is to a single use, it remains a material until the identity of actual articles can be seen emerging with certainty from the undifferentiated material." In Bendix, cut wood moldings dedicated to use as picture frames but not dedicated to the making of any particular frame were not classifiable as unfinished frames but only as the material from which frames were made.

In the instant case, the mousepad material is imported in roll form, which will be cut and decorated with dye sublimation printing. The merchandise is not marked to indicate where it is to be cut. Like the exemplars in the above referenced cases, no single mouse pad made from the imported material can be identified with certainty as an independent article. We disagree with the Protestant's contention that the subject material can only be used for making mouse pads, as similar material is used to make drink holders and wet suits. However, even if the subject material may be dedicated to use as mousepads, the identity of the mousepads cannot be seen emerging with certainty until they are cut and decorated. Accordingly, the subject mousepad material cannot be considered "articles" of vulcanized rubber and therefore is not properly classifiable under heading 4016, HTSUSA.

HOLDING:

Based on the foregoing and the assumptions that the "3 mm" material weighs less than 1,500 g/m2 and that the textile material is approximately 194 g/m2, the "3 mm" material is properly classified in subheading 5906.91.2000, HTSUSA, which provides for "Rubberized textile fabrics, other than those of heading 5902: Other: Knitted or crocheted: Of man-made fibers: Over 70 percent by weight of rubber or plastics." The applicable rate of duty is 0.8 percent ad valorem.

The "5 mm" thick mousepad material is properly classified in subheading 5907.00.1500, HTSUSA, which provides for "Textile fabrics otherwise impregnated, coated or covered; painted canvas being theatrical scenery, studio back-cloths or the like: Laminated fabrics; fabrics specified in note 9 to section XI: Of man-made fibers: Other. The applicable rate of duty is 9.6 percent ad valorem. The textile restraint category is 229.

The protest should be denied in full. 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. Any reliquidation of the entry or entries in accordance with this decision must be accomplished prior to mailing the decision.

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, and to the general 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 public access channels.

Sincerely,

John E. Elkins, Chief
Textiles Classification Branch

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