CLA-2 CO:R:C:T 088765 CC
District Director of Customs
United States Customs Service
P.O. Box 17423
Washington, D.C. 20041
RE: Application for Further Review; Protest number 5401-90-
000062; Lampe Lifter air cushions; inflatable air cushion;
textile; woven textile; rubber; textile coated, covered, or
laminated.
Dear Sir:
This protest was filed against your decision in the
liquidation of various entries involving the importation of Lampe
Lifter air cushions produced in Germany.
FACTS:
The merchandise at issue was entered through Dulles
International Airport in Washington, D.C. in three transactions
dating from April 19, 1990 to June 4, 1990. At the time of
entry, the merchandise was classified under heading 6307 of the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA) as an article made of textile material. The goods were
liquidated during the period from August 24, 1990 to September
21, 1990 under the same heading. On October 9, 1990, a protest
was timely filed against the classification and liquidation of
the entries. At the same time, an application for further review
of the protest was also filed. The protest was forwarded to
Customs Headquarters under the provisions of Section 174.26(b)(1)
of the Customs Regulations.
At issue is an article referred to as a Lampe-Lifter. The
Lampe-Lifter is a bladder-like item which acts as a jack or
lifting device when inflated with compressed air. The sample
measures approximately 60 centimeters by 50 centimeters and is
less than 1 centimeter thick when deflated. Literature
accompanying the protest submission indicates that very large
Lampe-Lifters, capable of raising objects weighing up to 22 tons
are also available. All of the Lampe-Lifters consist of a
bladder or cushion made from a rubber and textile composite
material. The precise manufacturing method is not disclosed.
However, the 'sandwiched' textile and rubber layers are clearly
evident when the material is viewed on edge. The edges of the
bladder are sealed to form an air tight container.
The application for further review states that the bladder
material is composed of a woven kevlar (aramid fiber) fabric
which has been embedded in neoprene rubber for reinforcing
purposes. The rubber is vulcanized (i.e., it has undergone a
physiochemical change through combination with sulphur and heat),
but is not hard rubber. In a submission which accompanied the
protest, counsel for the importer asserts that the textile
component comprises 25 percent of the weight of the material and
that the rubber comprises the remaining 75 percent. Counsel also
stated during a telephone conversation that the textile/rubber
weight relationship was approximately the same regardless of the
size of the Lampe-Lifter.
You submitted the following information concerning the
models concerned in the protest and their weights in grams per
meter squared:
Model G/m2
15 2310
30 2167
35 1703
10 3615
25 4240
50 2255
14510 6568
14522 7557
14533 6639
14542 7312
14566 8459
The Customs Laboratory has examined the sample provided with
the application for further review, designated by you as Model
No. 10. A central area, measuring 19-1/2 inches by 25-1/4
inches, and composed of two pieces of reinforced rubber material,
was found to weigh 4215.5 grams per square meter (g/m2) and
4255.9 g/m2 respectively. In addition, this area was found to be
composed of 75 percent rubber and 25 percent textile fibers.
ISSUE:
Is the Lampe-Lifter cushion an article of textile or an
article of rubber?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA) is made in accordance with the
General Rules of Interpretation (GRI's). The systematic detail
of the harmonized system is such that virtually all goods are
classified by application of GRI 1, that is, according to the
terms of the headings of the tariff schedule and any relevant
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 GRI's may be
applied, taken in order.
In a memorandum submitted with the Protest, counsel for the
importer argues that the Lampe-Lifter should be classified as an
article of rubber based on the product's essential character.
However, counsel's reliance on an essential character
determination is misplaced. The essential character criteria are
used to classify products under GRI 3. We believe that this
product may be classified on the basis of the headings and legal
notes to the HTSUSA, without resorting to GRI 3 and essential
character.
We find no heading in the tariff nomenclature which
specifically describes this product by name. However, both the
provisions for rubber products and the provisions for textile
articles contain headings for classifying "articles of . . ."
rubber or textiles, respectively. The Lampe-Lifter is made of or
from the rubber and textile composite material described above.
Therefore, to classify an article "of" such material, we must
first classify the material itself.
The classification of rubber and textile combinations is
governed by several legal notes: Note 2(a) to Chapter 40, Note
1(ij) to Section XI, and Note 4 to Chapter 59, HTSUSA. Note
1(ij) to Section XI, HTSUSA, provides that any textile fabric
impregnated, coated, covered or laminated with rubber, and
classifiable in Chapter 40, HTSUSA, is excluded from Section XI.
Likewise, Chapter Note 2(a) to Chapter 40, HTSUSA, provides that
any material classifiable as a textile of Section XI, HTSUSA, is
excluded from those provisions. The intent is to classify those
combinations which are rubber in nature in Chapter 40, and those
which are textile in nature in Section XI, HTSUSA. Chapter 59
provides for material described as "rubberized textile fabrics."
Chapter 59, Legal Note 4, HTSUSA, states, in pertinent part that
the expression "rubberized textile fabric" 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% by weight of textile material.
In addition, the Harmonized Commodity Description and Coding
System, Explanatory Notes, the official interpretation of the
HTSUSA at the international level, states concerning the
classification of textile and rubber combinations at page 580 the
following:
The classification of rubber and textile
combinations is essentially governed by Note 1 (ij) to
Section XI. Note 3 to Chapter 56 and Note 4 to Chapter
59, and as regards conveyor or transmission belts or
belting by Note 8 to Chapter 40 and Note 6(b) to
Chapter 59. The following products are covered by this
Chapter [Chapter 40]:
...
(c) Textile fabrics (as defined in Note 1 to Chapter
59) impregnated, coated, covered or laminated with
rubber, weighing more than 1500 g/m2 and
containing 50% or less by weight of textile
material.
The rubber and textile material is clearly a "fabric
impregnated [or] coated ..." with rubber. As noted, the Customs
Laboratory has tested material from the sample and determined
that it weighs more 1,500 g/m2. Thus, according to the relevant
legal notes and Explanatory Notes, the sample is classifiable as
rubber of Chapter 40.
There are ten other models of Lampe Lifters, besides the
model tested, that are the subject of this protest. Only four of
them weigh less in grams per meter squared than Model 10, the
tested model. In addition, the information you have provided to
us indicates that all of the models weigh more than 1500 g/m2 and
contain 50 percent or less of textile material. Accordingly,
assuming that this information is correct, all of the models are
classifiable in Chapter 40.
HOLDING:
The merchandise at issue is classified under subheading
4016.95.0000, HTSUSA, which provides for other articles of
vulcanized rubber other than hard rubber, other, other inflatable
articles. The rate of duty is 4.2 percent ad valorem.
The protest should be allowed. A copy of this decision
should be attached to the Customs Form 19 and provided to the
protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division