CLA-2 CO:R:C:T 089435 CRS

Mr. Peter J. Fisher
President
Continental Materials, Inc.
137 South Easton Road
Glenside, PA 19038

RE: Roofing material consisting of nonwoven substrate completely enveloped in a heavy layer or coating of asphalt classifiable as article of asphalt. HRL 083541 revoked.

Dear Mr. Fisher:

This is to advise you that the classification of roofing material under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) has been affected by a recent decision of this Office (Headquarters Ruling Letter (HRL) 089019). As the result of HRL 089019, our ruling (HRL 083541) to you of November 22, 1989, has been revoked. Our decision follows below.

FACTS:

In HRL 083541 dated November 22, 1989, a roofing product from Venezuela, 3 mm thick and consisting of a single ply nonwoven polyester substrate coated on both sides with asphalt, which itself was coated on one side with a layer of stone chips, was classified in heading 5603, HTSUSA.

HRL 089019 concerned the classification of modified bitumen membranes. The membranes were manufactured in thicknesses ranging from 2.2 mm to 8.0 mm, the majority being between 3.0 and 4.5 mm. All were comprised of a nonwoven polyester reinforcing mat or substrate, and were coated on both sides with modified bitumen. In some instances the upper surface of the membranes was covered with a layer of mineral granules or stone chips.

ISSUE:

Whether roofing membrane consisting of a textile substrate embedded in asphalt is classifiable as a coated or covered felt or as an article of asphalt.

LAW AND ANALYSIS:

In this case, there are two headings in which the instant merchandise may be classified: heading 5603; and heading 6807. Heading 5603, HTSUSA, provides for nonwovens, whether or not impregnated, coated, covered, or laminated. The Harmonized Commodity Description and Coding System, Explanatory Notes (EN), while not legally binding constitute the official interpretation of the Harmonized System at the international level. EN 56.03, 775, provides that heading 5603 covers:

certain "roofing felts" in which the textile fibres are agglomerated with tar or similar substances, and certain products known as "bitumen felts" obtained in the same way but incorporating a small quantity of cork fragments.

On this basis we held in HRL 083541 that nonwoven substrates embedded in asphalt were classifiable in heading 5603.

In contrast, heading 6807, HTSUSA, provides for articles of asphalt or of similar material (for example, petroleum bitumen or coal tar pitch). EN 68.07 provides in pertinent part that the heading includes:

(2) Roofing boards consisting of a substrate (e.g., of paperboard, of web or fabric of glass fibre, of fabric of man-made fibre or jute, or of aluminium foil) completely enveloped in, or covered on both sides by, a layer of asphalt or similar material.

The products in question are made from a layer of nonwoven fabric completely enveloped in asphalt bitumen.

In addition to HRL 083541, HRL 084035 dated December 18, 1990, also concerned the classification of roofing products, specifically, roll roofing and strip shingles consisting of a felt substrate (paper fibers and wood particles) coated and impregnated with asphalt and covered on one side with crushed gravel. The issue was whether these products were properly classifiable as asphalted paper of heading 4811, or as articles of asphalt of heading 6807. Citing EN 68.07 we stated in pertinent part at 6:

Although the term "roofing board" is not specifically defined . . . the above-discussed language from the Explanatory Notes clearly indicates that the heading 6807 provision for "articles of asphalt" contemplates and encompasses within its coverage products consisting of a substrate that is completely enveloped in a heavy or thick (as opposed to light or superficial) layer or coating of asphalt and used for roofing. (This analysis does not include consideration of a substrate completely enveloped in a heavy or thick layer or coating of asphalt while also containing on one surface a layer of mineral granules in support of the asphalt's weather-resistant properties. Of course, such a product would be something more than merely "asphalted paper and paperboard," and could only be classified as that of an "article of asphalt" under heading 6807.

Although the competing provision here is heading 5603 rather than heading 4811, the principle of HRL 084035, viz., that a product consisting of a substrate that is completely enveloped in a heavy or thick layer of asphalt is encompassed by the terms of heading 6807, is applicable to the instant merchandise. The roofing membranes are made from a nonwoven substrate completely enveloped in asphalt; accordingly, they are classifiable in heading 6807.

The articles classifiable in heading 5603, in contrast, are fabrics to which a light or superficial coating has been applied. HRL 084035 at 6. Indeed, this is suggested by the language of EN 56.03 which states that heading 5603 covers roofing felts where textile fibres are agglomerated with tar or similar substances, i.e., clustered or gathered together, but nevertheless remain visible through the coating.

HOLDING:

If imported in rolls, the roofing membranes in question are classifiable in subheading 6807.10.0000, HTSUSA, under the provision for articles of asphalt or of similar material (for example, petroleum bitumen or coal tar pitch); in rolls. They are dutiable at the rate of 4.9 percent ad valorem and are not currently subject to quota/visa requirements..

If imported other than in rolls, the roofing membranes are classifiable in subheading 6807.90.0010, HTSUSA, under the provision for articles of asphalt . . . ; other; articles of a kind used for roofing or siding. They are dutiable at the rate of 5.3 percent ad valorem and are not currently subject to quota/visa requirements.

In order to insure uniformity in Customs classification of this merchandise and eliminate uncertainty, we are revoking HRL 083541 to reflect the above classification effective with the date of this letter. However, if, after your review, you disagree with the legal basis for our decision, we invite you to submit any arguments you might have with respect to this matter for our review. Any submission you wish to make should be received within thirty days of the date of this letter.

This notice to you should be considered a revocation of HRL 083541 under 19 CFR 177.9(d)(1). It is not to be applied retroactively to HRL 083541 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of your client's merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, HRL 083541 will not be valid precedent. We recognize that pending transactions may be adversely affected by this revocation in that current contracts for importations arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, your client may, at its discretion, notify this office and apply for relief from the binding effects of this decision as may be warranted by the circumstances. However, please be advised that in some instances involving import restraints, such relief may require separate approvals from other government agencies.

Sincerely,

John Durant, Director
Commercial Rulings Division