HQ 952145: Request for Further Review of Protest 3001-92-100168, dated February 19, 1992, Concerning Office Machine Keytop Backing Rubber

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 952145

                         April 19, 1993

CLA-2 CO:R:C:F  952145  ALS

CATEGORY:  Classification

TARIFF NO.:  4016.99.5050

District Director of Customs
1000 Second Avenue
Suite 2200
Seattle, WA 98104-1049

RE:  Request for Further Review of Protest 3001-92-100168, dated
     February 19, 1992, Concerning Office Machine Keytop Backing
     Rubber

Dear Sir:

     This ruling is on a protest that was filed against your
decisions of December 6, 1991, and January 24, 1992, in the
liquidation of 10 entries covering the referenced item.

FACTS:

     The subject article is a vulcanized keytop backing used in
the manufacture of automatic data processing keyboards. It is
composed of a nonsilicone compound.  Customs laboratory analyses
of the product show that the rubber is either poly (ethylene-co-
propylene) or poly (ethylene propylene) rubber.  It consists of a
resilient dome which is actuated by a plastic keytop and which acts
as a return spring.  When force is applied to the keytop switch the
dome collapses allowing an integral carbon pad to short a pair of
contacts on a printed circuit board.  

ISSUE:

     What is the classification of an office machine keytop backing
made of rubber?

                              - 2 -

LAW AND ANALYSIS:

     Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI's) taken in order.  
GRI 1 provides that the classification is determined first in
accordance with the terms of the heading and any relative section
and chapter notes.  If GRI 1 fails to classify the goods and if
the heading and legal notes do not otherwise require, the remaining
GRI's are applied, taken in order.

     The importer claims that the article under consideration is
classifiable in heading 8473 under the provision for parts of data
processing machines.  The entries covering the article were
liquidated under the provision for articles of vulcanized rubber
in heading 4016.  The importer references New York Ruling (NYRL)
863577, dated June 21, 1991, in support of its position.

     We considered the above headings and the referenced ruling. 
In considering that ruling we noted that the article covered
thereby was a molded silicone rubber pad with collapsible
protrusions or domes used in printed circuit board switch panels. 
It was classified in the provisions for parts of a telephone set
in heading 8517.

     In evaluating the propriety of classification of the product
in heading 8473, we noted that both that heading and heading 8517
fall in Section XVI of the HTSUSA.  Note 1(a) of that section
excludes certain articles from classification therein.  It
specifically excludes other articles of a kind used in machinery
or mechanical or electrical appliances or for other technical uses,
of vulcanized rubber other than hard rubber (heading 4016).

     Note 4 to Chapter 40, HTSUSA, which contains the referenced
heading describes synthetic rubber as applying to unsaturated
synthetic substances which can be irreversibly transformed by
vulcanization (cross-linkable) with sulfur into non-thermoplastic
substances which, at a temperature between 18 and 29 degrees
Centigrade, will not break on being extended to three time their
original length and will return, after being extended to twice
their original length, within a period of 5 minutes, to a length
not greater than 1-1/2 times their original length.  Based on this
note, synthetic rubbers which are not cross-linkable with sulfur
are not classifiable as rubber.

     In regard to the article in NYRL 863577 we note that such
article was composed of silicone rubber which is not cross-
linkable with sulfur whereas the current article is composed of a
nonsilicone compound and is cross-linkable with sulfur.  Pursuant
                              - 3 -

to the aforementioned Note 4 to chapter 40, the silicone rubber
was not considered a rubber.  Thus the silicone-rubber pad was
considered a plastics material of chapter 39, HTSUSA, rather than
a rubber of chapter 40.  

     Machine parts of plastics are not precluded from
classification in section XVI.  Since the part which was the
subject of NYRL 863577 was solely or principally used as a part of
the telephone set, classification remained in section XVI (heading
8517).

     As indicated above, Customs laboratory analyses of the current
product show that the rubber in the keytop backing rubber is either
poly (ethylene-co-propylene) or poly (ethylene propylene) rubber. 
These materials meet the chapter 40 definition for synthetic
rubber.  Therefore, the keypads, even though they may be solely or
principally used as parts of automatic data processing equipment,
are precluded from classification as parts in section XVI.

     Accordingly, we have concluded that the rubber backing is
properly classifiable in chapter 40, HTSUSA.

HOLDING:

     Office machine keytop backings composed of poly (ethylene-
co-propylene) rubber of poly (ethylene propylene) rubber are
classifiable in subheading 4016.99.5050, HTSUSA, which provides
for other articles of vulcanized rubber other than hard rubber,
other.  They are subject to a general rate of duty of 5.3 percent
ad valorem.

     Since the classification indicated above is the same as the
classification under which the entries were liquidated, you are
instructed to deny the protest in full.  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