HQ 959152

November 20, 1997

CLA-2 RR:CR:GC 959152 ptl

CATEGORY: Classification

TARIFF NO.: 4008.29.20

Port Director

U.S. Customs Service

9901 Pacific Highway

Blaine, Washington 98230

RE: Protest 3004-96-100026; flangeway fillers of recycled

rubber.

Dear Port Director:

The following is our response to protest 3004-96-100026

concerning your classification under the Harmonized Tariff

Schedule of the United States, (HTSUS) of articles identified as

flangeway fillers of recycled rubber.

The entries covering the merchandise were liquidated on

November 13, 1995, under the provision for flange fillers of

recycled rubber in subheading 4008.29.20, HTSUS. A timely

protest under 19 U.S.C. 1514 was received on January 3, 1996.

The protestant requested reliquidation of the entry under the

provision for unvulcanized rubber in subheading 4006.90.50,

HTSUS.

FACTS:

The merchandise under protest is strips of reclaimed rubber,

called flangeway strips, which lay alongside each of the steel

running rails on which trains move. They are used mainly at

road-rail crossings. According to the manufacturer, the strips

help prevent electrical current from passing from one rail to the

other and they insulate the rail from moisture penetration. The

strips are manufactured from reclaimed rubber and polymers by

using an extrusion method. The strips are extruded in varying

lengths which can be up to 25 feet long.

Because the articles are primarily composed of reclaimed

rubber, the importer attempted to enter them under heading 4003

which provides for reclaimed rubber in primary forms or in

plates, sheets or strip. This classification was rejected and

the merchandise was reclassified under subheading 4008.29.20,

HTSUS, which provides for: Plates, sheets, strips, rods and

profile shapes, of vulcanized rubber other than hard rubber: Of

noncellular rubber: Other: Profile shapes.

Because the initial classification was rejected, the

importer filed this protest attempting to have the merchandise

classified under subheading 4006.90.50, HTSUS, which provides

for: Other forms (for example, rods, tubes and profile shapes)

and articles (for example, disks and rings), of unvulcanized

rubber, Other, Other. In support of his position, the protestant

has provided a letter, dated November 23, 1995, from the Canadian

Department of Foreign Affairs and International Trade.

ISSUE:

What is the proper classification of rubber flangeway

fillers?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff

Schedule of the United States (HTSUS) in accordance with the

General Rules of Interpretation (GRI). The systematic detail of

the HTSUS 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 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

in order. In understanding the language of the HTSUS, the

Harmonized Commodity Description and Coding System Explanatory

Notes may be utilized. The Explanatory Notes (ENs), although not

dispositive or legally binding, provide a commentary on the scope

of each heading of the HTSUS, and are generally indicative of the

proper interpretation of these headings. See T.D. 89-80, 54 Fed.

Reg. 35127, 35128 (August 23, 1989).

The provisions under consideration are as follows:

4003.00.00 Reclaimed rubber in primary forms or in

plates, sheets or strip.

\* \* \* \* \*

4006 Other forms (for example, rods, tubes, and

profile shapes) and articles (for example,

discs and rings), of unvulcanized rubber:

4006.90 Other:

4006.90.50 Other.

\* \* \* \* \*

4008 Plates, sheets, strip, rods and profile shapes, of

vulcanized rubber other than hard rubber:

Of cellular rubber:

4008.19 Other:

Of natural rubber:

4008.19.20 Profile shapes.

4008.19.60 Other:

Profile shapes.

Of noncellular rubber:

4008.29 Other:

4008.29.20 Profile shapes.

\* \* \* \* \*

Heading 4003 covers reclaimed rubber which is described in

the ENs as being obtained from used rubber articles, especially

tires, or from waste or scrap of vulcanized rubber. However,

this heading covers reclaimed rubber only in primary forms or in

plates, sheets or strip. A picture of a cross section of the

articles under protest was submitted to Customs by the

manufacturer. Based on that cross section, we have determined

that the articles are in the form of a profile. Thus, they are

not in any of the described forms eligible for classification in

this heading.

The protestant has requested classification in subheading

4006.90.50, HTSUS. As noted above, this subheading provides for

articles which are composed of unvulcanized rubber. The Customs

laboratory has examined a sample of the subject article and, in

Report No. 8-95-22001-001, issued on October 16, 1995, stated

that the product is a mixture composed essentially of vulcanized

natural rubber, vulcanized styrene butadiene rubber and

inorganics (approximately 36% by weight). We note that

classification of the articles in this subheading was supported

by the Canadian Department of Foreign Affairs and International

Trade. However, their letter was written without benefit of the

report containing the results of the Customs laboratory analysis

of the articles. Based on this report, the articles are not

eligible for classification in this subheading.

Based upon information regarding the profile shape of the

articles provided by the importer, the Customs laboratory report

regarding the composition of the articles, and noting that the

rubber is obtained from ground tires and is thus noncellular, we

have determined that they are properly classifiable in subheading

4008.29.20, HTSUS.

HOLDING:

Flange fillers of recycled rubber are classified in

subheading 4008.29.20, HTSUS.

The protest should be DENIED. 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 and any reliquidations of entries in accordance

with this decision must be accomplished prior thereto. 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 via the Customs Rulings Module in ACS and the

public via the Diskette Subscription Service, Freedom of

Information Act and other public access channels.

Sincerely,

John Durant, Director

Commercial Rulings Division