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HQ 966362




August 19, 2003

CLA-2 RR:CR:GC 966362 DSS

CATEGORY: CLASSIFICATION

TARIFF NO.: 4008.11.50

Port Director
Port of Los Angeles-Long Beach
U.S. Customs and Border Protection
301 E. Ocean Blvd.

Long Beach, CA 90802

RE: Protest No. 2704-03-100433; Latex rubber mattress blocks; GRI 3(b); Essential Character

Dear Port Director:

This is our decision on protest 2704-03-100433 timely filed by counsel, on behalf of American Bedding International, Inc., on February 12, 2003, against your decision regarding the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of latex rubber mattress blocks.

FACTS:

The merchandise is used as the uppermost layer of mattresses. It is blocks of latex foam, comprised of a blend of synthetic and natural latex rubber. The latex foam blocks are claimed to be primarily a mixture of five components: synthetic rubber (61.9 percent by weight), natural rubber (26.7 percent), active fillers (5.7 percent), a softner (4.6 percent), and an antioxident (1.1 percent). A CF-28 Notice of Action, dated October 28, 2002, indicates that at the time reclassification was contemplated, the port had manufacturer specifications stating that the goods were 70 percent synthetic and 30 percent natural. The sample is a block of latex. The blocks are imported on pallets and are wrapped in foil. A sample was submitted with the protest.

The blocks are made using the Talalay process. The Talalay method is a process whereby liquid rubber is whipped into a foam and poured into a mold that has rods that go into the foam rubber. A vacuum is placed on the mold, which removes air bubbles and distributes the liquid rubber evenly throughout the mold. Carbon dioxide (CO2) is run through the rods, freezing the foamed rubber and locking in the consistency. Heat is sent through the rods, providing even temperature. This method is said to yield consistent latex cores without air pockets or uneven firmness. Then the latex is removed from the molds. The rods leave holes in the top and bottom of the latex blocks.

Following a notice of action, Customs classified the subject merchandise at liquidation in subheading 4008.19.80, HTSUS, which provides for “Plates, sheets, strip, rods and profile shapes, of vulcanized rubber other than hard rubber: Of cellular rubber: Other: Other: Other, “ on the belief that the essential character of the blocks is provided by the synthetic rubber component. The protestant advocates classification of the subject merchandise in subheading 4008.19.40, HTSUS, which provides for “Plates, sheets, strip, rods and profile shapes, of vulcanized rubber other than hard rubber: Of cellular rubber: Other: Of natural rubber: Other.” The protestant claims that the essential character of the blocks is provided by the natural rubber component.

The subject entries were liquidated between November 15 and November 22, 2002. The protest was timely filed on February 12, 2003.

ISSUE:

Whether the essential character of the latex foam blocks is provided by the synthetic rubber component or the natural rubber component.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative 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 GRIs may then be applied. According to GRI 6, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. The relative section, chapter and subchapter notes also apply, unless the context otherwise requires.

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, the ENs provide a commentary on the scope of each heading of the HTSUS and are thus useful in ascertaining the classification of merchandise under the System. The Bureau of Customs and Border Protection (Customs) believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions (2002) under consideration are as follows:

Plates, sheets, strip, rods and profile shapes, of vulcanized rubber other than hard rubber: Of cellular rubber:
4008.11 Plates, sheets and strip:
Of natural rubber
4008.11.50 Other
Other:
Of natural rubber:
Other
Other:
4008.19.80 Other

The proper heading in this case is heading 4008, HTSUS, which provides for “Plates, sheets, strip, rods and profile shapes, of vulcanized rubber other than hard rubber.” Both the protestant and you agree that the blocks fall under heading 4008, HTSUS. Based on the information in the file, the blocks are comprised of vulcanized rubber other than hard rubber, the blocks are made of cellular rubber and are in one of the enumerated forms. Thus, the goods fall under heading 4008, HTSUS. The issue is under which subheading are the blocks classified.

GRI 6 permits us to compare subheadings within the same heading, provided that only subheadings at the same level are comparable. Under GRI 6, the relative section, chapter and subchapter notes apply, unless the context otherwise requires. GRI 2 is not applicable here. GRI 3(b) provides that mixtures consisting of different materials or made up of different components are to be classified as if they consisted of the material or component which gives them their “essential character.” Explanatory Note VII to Rule 3(b). Thus, the question is whether the synthetic rubber component or the natural rubber component gives the latex foam blocks their essential character. The GRIs do not provide a definition of the phrase “essential character,” but the ENs provide an illustrative list of factors to consider. The ENs state that the factors that may be relevant to the determination of “essential character” will “vary between different types of goods,” but may include the nature of the material, its bulk, quantity, weight, value or by the role of a material in relation to the use of the goods. Explanatory Note VIII to Rule 3(b).

In a memorandum of law accompanying the protest, the protestant claims that the natural rubber component of the latex foam blocks imparts the essential characteristics. It claims that the natural latex imparts resiliency, elasticity and tensile strength to the foam blocks, which are necessary for the foam to perform effectively. The protestant claims that the synthetic latex component merely serves as inactive filler. To supplement this claim, in an April 28, 2003 letter, the protestant submitted a brief article and two Internet advertisements touting the “Talalay process” of vulcanizing rubber, and its use of natural materials.

A search of other sources, however, reveals that resilience, elasticity and tensile strength are qualities inherent in all latex rubber products, both natural and synthetic. Many foam mattresses are made entirely of synthetic rubber and exhibit these same qualities. The exhibit the protestant cites touting the Talalay process indicates that the ingredients involved include natural rubber, synthetic latex, and other “high-grade ingredients.” The article the protestant provided indicates that synthetic foam rubber can provide many of the same physical characteristics of natural foam rubber. Other information touts the blend of synthetic and natural latex over foam that is solely synthetic or natural. See http://www.Flobeds.com. Other advertisements tout the Talalay process itself as imparting characteristics to the latex foam mattresses. See http://www.materasso.sk/matrace/latexove_en.htm.

Our research reveals that the qualities of resiliency, comfort, support and strength can be imparted by both natural and synthetic rubber components. It is the determination of Customs that the component of the latex foam blocks that affords the article its essential characteristic is the synthetic component. The role of the synthetic rubber is fundamental to the functioning of the merchandise. The synthetic component provides the foam blocks with their greatest bulk and weight, even at the protestant’s claimed weights of 61.9 percent synthetic latex and 26.7 percent natural latex. We find that the synthetic rubber material imparts the essential character, and that the latex blocks are classified accordingly as goods of synthetic, vulcanized rubber.

With regard to the form of the blocks, Chapter 40, Note 9, HTSUS, states in pertinent part, that:

In heading ... 4008, the expressions “plates”, “sheets” and “strip” apply only to plates, sheets and strip, and to blocks of regular geometric shape, 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 [emphasis in original].

EN 40.08 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). Based on Note 9 to Chapter 40, we classify the subject blocks in the same provision as plates, sheets and strip, under heading 4008.11, HTSUS, as “Plates, sheets, strip, rods and profile shapes, of vulcanized rubber other than hard rubber: Of cellular rubber: Plates, sheets and strip.”

HOLDING:

At GRI 3(b), the instant latex foam blocks are 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.”

Since the rate of duty under the classification indicated above is the same as the liquidated rate, you are instructed to DENY the protest in full. 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 and Border Protection Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon
Director,

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