CLA-2-40:OT:RR:NC:N1:137
Jessica Foltz
A&A Contract Customs Brokers USA, Inc.
#2- 12th Street
Blaine, Washington 98230
RE: The tariff classification of a vulcanized rubber sheet from China
Dear Ms. Foltz:
In your letter dated June 1, 2020, you requested a tariff classification ruling, on behalf of your client North West Rubber Ltd.
The subject product is a vulcanized rubber sheet. The sheets are manufactured in thicknesses between 5/8 inch and 3/4 inch. The bottom side of the product may have ribs to facilitate drainage or be flat. The top side of the product has an embossed finish with an appearance of light pebbles or large diamond shapes. The product is shipped in 100 foot rolls. It is sold in a variety of widths with the most common widths being 48, 60 or 72 inches. You state that the primary purchasers of the rubber sheet will be dairy equipment retailers or barn builders who will install the sheet on the floor of dairy alley ways, holding pens or in milking parlors. The purpose is to protect cows from hard concrete.
The applicable subheading for the vulcanized rubber sheet will be 4008.21.0000, HTSUS, which provides for Plates, sheets, strip, rods and profile shapes, of vulcanized rubber other than hard rubber: Of noncellular rubber: Plates, sheets and strip: Other. The general rate of duty will be Free.
In your request, you stated that you believe this article should be classified under subheading 9817.00.5000, Harmonized Tariff Schedule of the United States (HTSUS). In pertinent part, “before an article can be classified in either of these headings the following three-part test must be applied:
1) The articles must not be among the long list of exclusions to heading 9817.00.50 or 9817.00.60 under Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2;
2) The terms of heading 9817.00.50 or 9817.00.60 must be met in accordance with GRI 1; and
3) The merchandise must meet the actual use conditions required in accordance with sections 10.131-10.139 of the Customs Regulations (19 CFR §§10.131-10.139).
A good must satisfy each part of the test. If a good fails any part of the test, then it is treated according to its primary classification.”
The first part of the test is to determine whether the rubber sheet is excluded from heading 9817, HTSUS. The sheet is classifiable in heading 4008, HTSUS. There is no exclusion within this heading for articles of chapter 40, therefore the first part of the test is satisfied.
The second part of the test calls for the rubber sheet to be included within the terms of subheading 9817.00.50, HTSUS, as required by GRI 1. The rubber sheet must be "machinery", "equipment" or "implements" used for "agricultural or horticultural purposes".
For this part of the test, the initial determination to be made is what agricultural or horticultural pursuit is in question. It is the importer's position that the rubber sheet is used in dairy cattle barns to protect cows from the hard concrete and have a positive impact on overall milk production. This is clearly an agricultural pursuit. The next determination to be made is whether the subject merchandise is "machinery", "equipment" or "implement". The rubber is imported in rolls, and are cut to length by the purchaser before they are put to their intended use.
GRI 2(a) states in part: “any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article.”
We find that the rubber sheet as imported is not an unfinished article because it does not have the essential character of a complete or finished article which is used in agriculture. The identity of the sheet is not fixed with certainty at the time of importation. Even though articles made from it are intended for use in the care and keeping of cattle, in its condition as imported, the sheet does not have the requisite attributes of an agricultural implement.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 4008.21.0000, HTSUS, unless specifically excluded, are subject to an additional 25 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.03, in addition to subheading 4008.21.0000, HTSUS, listed above.
The HTSUS is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china, respectively.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at https://hts.usitc.gov/current.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Christina Allen at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division