GCP ELASTOMERIC INC.
PRESIDENT OF THE CANADA BORDER SERVICES AGENCY
Appeal No. AP-2010-011
Decision and reasons issued
Monday, April 4, 2011
TABLE OF CONTENTS
IN THE MATTER OF an appeal heard on January 18, 2011, pursuant
to subsection 67(1) of the Customs Act, R.S.C. 1985 (2d
Supp.), c. 1;
AND IN THE MATTER OF two decisions of the President of the
Canada Border Services Agency, dated March 4, 2010, with respect to
a request for re-determination pursuant to subsection 60(4) of the
GCP ELASTOMERIC INC. Appellant
THE PRESIDENT OF THE CANADA BORDER SERVICES
The appeal is dismissed.
Place of Hearing: Ottawa, Ontario
Date of Hearing: January 18, 2011
Tribunal Member: Serge Fréchette, Presiding Member
Counsel for the Tribunal: Eric Wildhaber
Research Director: Matthew Sreter
Research Officer: Gary Rourke
Manager, Registrar Office: Michel Parent
Registrar Officer: Julie Lescom
|GCP Elastomeric Inc.
|President of the Canada Border Services Agency
Canada Border Services Agency
Please address all communications to:
Canadian International Trade Tribunal
Standard Life Centre
333 Laurier Avenue West
1. This is an appeal filed by GCP Elastomeric Inc. (GCP) with
the Canadian International Trade Tribunal (the Tribunal) pursuant
to subsection 67(1) of the Customs Act
decisions made by the President of the Canada Border Services
Agency (CBSA) on March 4, 2010, pursuant to subsection 60(4).
2. The issue in this appeal is whether rubber mats and sheets,
model Nos. NES-CSS-B70, NES-CSS-B60 and CHT-SS-B602
(the goods in
issue), are properly classified under tariff item
No. 4008.21.90 of the schedule to the Customs
as other plates, sheets and strip of
non-cellular rubber, as determined by the CBSA, or should be
classified under tariff item No. 4003.00.00 as reclaimed rubber in
primary forms or in plates, sheets or strip, as submitted by
3. The goods in issue were imported by GCP on August 23, 2006,
and March 4, 2007.
4. On September 10, 2008, pursuant to paragraph
59(1)(b) of the Act, the CBSA re-determined the
tariff classification of the goods in issue under tariff item No.
4008.21.90 as other plates, sheets and strip of non-cellular
5. On November 12, 2008, pursuant to section 60(1) of the
Act, GCP requested a further re-determination of tariff
6. On March 4, 2010, pursuant to subsection 60(4) of the
Act, the CBSA issued decisions confirming the
classification of the goods in issue under tariff item No.
7. On May 31, 2010, GCP appealed the CBSA’s decisions to the
Tribunal, pursuant to section 67 of the Act.
8. On January 18, 2011, the Tribunal held a public hearing in
9. Mr. Allan Granville, a senior chemist for the CBSA, appeared
as a witness for the CBSA. The Tribunal qualified Mr. Granville as
an expert in the analysis of polymer and rubber products. No
witnesses were called by GCP.
GOODS IN ISSUE
10. The goods in issue are three models of flexible,
non-cellular, vulcanized compounded rubber in sheets of various
11. The CBSA filed four physical exhibits, three of which were
samples of the goods in issue;5
the fourth was a sample of
12. In appeals under section 67 of the Act concerning
tariff classification matters, the Tribunal determines the proper
tariff classification of the goods in issue in accordance with
prescribed interpretative rules.
13. The tariff nomenclature is set out in detail in the schedule
to the Customs Tariff, which is designed to conform to the
Harmonized Commodity Description and Coding System (the Harmonized
System) developed by the World Customs Organization.7
schedule is divided into sections and chapters, with each chapter
containing a list of goods categorized in a number of headings and
subheadings and under tariff items. Sections and chapters may
include notes concerning their interpretation. Sections 10 and 11
of the Customs Tariff prescribe the approach that the
Tribunal must follow when interpreting the schedule in order to
arrive at the proper tariff classification of goods.
14. Subsection 10(1) of the Customs Tariff provides as
follows: “. . . the classification of imported goods
under a tariff item shall, unless otherwise provided, be determined
in accordance with the General Rules for the Interpretation of
the Harmonized Systemand the Canadian Rules set out
in the schedule.”
15. The General Rules comprise six rules structured in
sequence so that, if the classification of the goods cannot be
determined in accordance with Rule 1, then regard must be had to
Rule 2, and so on.10
Classification therefore begins with Rule
1, which provides as follows: “. . . for legal
purposes, classification shall be determined according to the terms
of the headings and any relative Section or Chapter Notes and,
provided such headings or Notes do not otherwise require, according
to the following provisions.”
16. Section 11 of the Customs Tariff provides as
follows: “In interpreting the headings and subheadings, regard
shall be had to the Compendium of Classification Opinions to the
Harmonized Commodity Description and Coding System and the
Explanatory Notes to the Harmonized Commodity Description and
Coding System, published by the Customs Co-operation
Council (also known as the World Customs Organization), as amended
from time to time.” Accordingly, unlike chapter and section notes,
the Explanatory Notes are not binding on the Tribunal in
its classification of imported goods. However, the Federal Court of
Appeal has stated that these notes should be applied, unless there
is a sound reason to do otherwise.13
Relevant Provisions of
the Customs Tariff, General Rules and Explanatory Notes
17. The relevant provisions of the Customs Tariff
provide as follows:
PLASTICS AND ARTICLES THEREOF;
RUBBER AND ARTICLES THEREOF
. . .
RUBBER AND ARTICLES THEREOF
. . .
4003.00.00 Reclaimed rubber in primary forms or in
plates, sheets or strip.
. . .
40.08 Plates, sheets, strip, rods and profile shapes, of
vulcanized rubber other than hard rubber.
. . .
-Of non-cellular rubber:
4008.21 - -Plates, sheets and strip
. . .
4008.21.90 - - -Other
18. There are no relevant section notes to Section VII.
19. The relevant note to Chapter 40 reads as follows:
9. In headings 40.01, 40.02, 40.03, 40.05 and 40.08, the
expressions “plates”, “sheets” and “strip” apply only to plates,
sheets and strip and to blocks of regular geometric shape, uncut or
simply cut to rectangular (including square) shape, whether or not
having the character of articles and whether or not printed or
otherwise surface-worked, but not otherwise cut to shape or further
20. The Explanatory Notes to Chapter 40 provide the
following guidance in regard to the general arrangement of the
(b) Headings 40.03 and 40.04 cover reclaimed rubber in primary
forms or in plates, sheets or strip, and waste, parings and scrap
of rubber (other than hard rubber) and powders and granules
. . .
(e) Headings 40.07 to 40.16 cover semi-manufactures and articles
of vulcanised rubber other than hard rubber.
21. In addition, the Explanatory Notes to Chapter 40
give a specific meaning to the term “vulcanised” that is used in
the nomenclature and read as follows:
The term “vulcanised” refers in general to rubber (including
synthetic rubber) which has been cross-linked with sulphur or any
other vulcanising agent (such as, sulphur chloride, certain oxides
of polyvalent metals, selenium, tellurium, thiuram di- and
tetrasulphides, certain organic peroxides and certain synthetic
polymers), whether or not using heat or pressure, or by high
energy, radiation so that it passes from a mainly plastic state to
a mainly elastic one. . . .
For the purpose of vulcanisation, in addition to vulcanising
agents, certain other substances are also normally added, such as
accelerators, activators, retarders, plasticisers, extenders,
fillers, reinforcing agents or any of the additives mentioned in
Note 5 (B) to this Chapter. Such vulcanisable mixtures are regarded
as compounded rubber and are classified in heading 40.05 or 40.06
depending upon the form in which they are presented.
22. The Explanatory Notes to heading No. 40.03 read as
Reclaimed rubber is obtained from used rubber articles,
especially tyres, or from waste or scrap, of vulcanised rubber, by
softening (“devulcanising”) the rubber and removing some of the
unwanted matter by various chemical or mechanical means. The
product contains residues of sulphur or other vulcanising agents in
combination and is inferior to virgin rubber, being more plastic
and more tacky than virgin rubber. It may be put up in sheets
dusted with talc or separated by polyethylene film.
This heading covers reclaimed rubber in primary forms or in
plates, sheets or strip, whether or not mixed with virgin rubber or
other added substances, provided that the product has the essential
character of reclaimed rubber.
of the Goods in Issue
23. The dispute in this matter concerns the heading in which the
goods in issue should be classified. GCP is of the view that the
goods in issue should be classified in heading No. 40.03. The CBSA
argues for classification in heading No. 40.08. The parties,
therefore, both agree that the goods in issue are prima
facie classifiable in only one heading of the Customs
Tariff in accordance with Rule 1 of the General
Rules. Therefore, the Tribunal will examine the terms of the
competing headings, and any relative notes to Section VII or
Chapter 40, in order to determine the heading in which the goods in
issue are classifiable.
24. GCP argued that the goods in issue are
“. . . vulcanized reclaimed rubber
sheets . . .”14
that should be classified
in heading No. 40.03. GCP referred to the definition of “reclaimed
rubber” found in the Explanatory Notes to heading No.
40.03 and argued that, since the goods in issue are manufactured
from used tires and have been subject to a devulcanization process,
they have the essential character of reclaimed rubber. In support
of its position, GCP submitted a document from the producer of the
goods in issue, the Beijing Rubber Company, which detailed the
manufacturing process of the goods in issue, and argued that the
goods in issue had been manufactured by a process using reclaimed
rubber tires, stripped of their steel and fabric elements, shredded
and reduced to a fine crumb, and subjected to a devulcanising
25. The CBSA argued that the Explanatory Notes to
heading No. 40.03 require that the goods in issue have the
essential character of devulcanized reclaimed rubber. According to
the CBSA, the evidence regarding the manufacturing process of the
goods in issue indicates that they were subjected to a vulcanising
process (the addition of pressure and heat to sheets of reclaimed
rubber) by the manufacturer and, therefore, did not have the
essential character of devulcanized reclaimed rubber.
26. The CBSA submitted that the goods in issue are made of
vulcanized rubber, are non-cellular and are presented in sheets and
that they therefore meet the conditions for classification in
heading No. 40.08. GCP provided no argument to refute the CBSA’s
view that the goods in issue are classifiable in heading
27. GCP referred to several U.S. Customs Services rulings, in
which rubber flooring material and rubber mats were classified in
heading No. 40.03.16
On that point, the CBSA submitted that
the Tribunal is not bound by these rulings and that there is no
evidence that the goods in issue subject to the U.S. Customs
Services rulings contained reclaimed rubber. With respect to the
goods in issue, the Tribunal agrees with the CBSA and recalls its
long-standing view on the relative usefulness of such
28. The Tribunal notes that, according to the terms of heading
No. 40.08, in order for the goods in issue to be classified in this
heading, they must, at the time of importation into Canada, be (1)
plates, sheets, strip, rods or profile shapes (2) of vulcanized
rubber (3) other than hard rubber.
29. The description of the goods in issue indicates that they
are composed of rubber and are presented in the form of sheets. In
addition, neither the CBSA nor GCP claimed that the goods in issue
are made of hard rubber, which would have excluded them from
classification in heading No. 40.08. The resolution of this appeal
therefore turns on whether the goods in issue were made of
vulcanized rubber, as claimed by the CBSA, or whether they were
made of reclaimed rubber, as claimed by GCP.
30. The record shows that, at one stage of their manufacturing
process, the goods in issue would have gone through a
devulcanization process that purportedly would have qualified them
as being made of “reclaimed rubber”, as described in the
Explanatory Notes to heading No. 40.03. That point was not
contested by the CBSA. However, GCP did not contest the CBSA’s
assertion that there is no scientific method which would allow this
intermediary transformation step to be verified by analyzing the
goods in issue.18
In any event, as previously indicated,
the Tribunal is concerned exclusively with the nature of the goods
in issue at the time of importation.19
31. Mr. Granville testified that he tested the tackiness and
plasticity of the goods in issue in order to determine whether they
were composed of virgin, reclaimed or vulcanized
The test, which involved dissolving the
goods in issue in a universal solvent, toluene, indicated that they
were “. . . highly cross-linked
or . . . highly
vulcanized . . . .”21
testified that the higher the cross-linkage, the more vulcanization
there is, and vice versa.22
A further test, involving
an odour analysis, indicated that the goods in issue contained
benzothiazole, a “. . . chemical that is the residue
of vulcanizing accelerators used in rubber
as well as other strong amounts of
antioxidants used in rubber vulcanization. On the basis of the
results of these tests, Mr. Granville determined that the goods in
issue were composed of vulcanized rubber.
32. Mr. Granville further compared the physical properties of
the goods in issue with a sample of reclaimed rubber24
determine whether they were tacky and exhibited plasticity in
comparison to known standards. Mr. Granville demonstrated this test
by pulling on the sample of reclaimed rubber while holding it in
his hands, which resulted in a deformation, normally associated
with reclaimed rubber. Mr. Granville testified that the goods in
issue did not have “. . . any of the tack associated
with reclaimed rubber.”25
33. Mr. Granville referred to the document from the Beijing
Rubber Company in his testimony and stated that there were, in his
expert opinion, three distinct processes identified therein. The
first described a grinding process of rubber, the second described
a devulcanization process, and the third described a vulcanization
process. In response to a question by the Tribunal, Mr. Granville
referred to the document, which described the end of the
devulcanization process as follows: “The resultant devulcanized
rubber is cooled and pressed into crude 0.5 inch sheets on two roll
The start of the vulcanization process is
described as follows: “The devulcanized rubber is combined with
chemical curatives and fillers as required in an internal rubber
mixing machine (500 Kgm) or on a tow roll mill by hand labour (100
34. Although it is clear that the goods in issue, at the
beginning stages of their manufacture, were subjected to a process
that could be described as devulcanization, it is also clear,
through the testimony of Mr. Granville and the documentary
evidence, that the goods were further subjected to a process
wherein additives were combined with the goods and that pressure
and heat were applied to cure them into high-density solid sheets
of rubber. The goods in issue were further processed by being
surface coated with talcum powder to reduce tackiness, trimmed and
cut to required lengths, and packaged for shipping. This further
processing corresponds to a vulcanization process. Consequently,
the Tribunal finds that the goods in issue are made of vulcanized
35. The Tribunal notes that the scientific information on the
record would indicate that there is no such thing as being
partially vulcanized or devulcanized. In other words, a product is
either vulcanized or it is not. Accordingly, the Tribunal is ready
to accept that, when virgin rubber is subjected to the
transformation process known as vulcanization, the resultant
product is vulcanized rubber. Conversely, when vulcanized rubber is
subjected to the transformation process known as devulcanization,
the resultant product is devulcanized or reclaimed rubber. In
addition, nothing in the schedule to the Customs Tariff
allows the Tribunal to conclude that a product is, or is not,
vulcanized, on the basis of the degree or extent of vulcanization.
This finding is supported by the testimony of Mr. Granville who
stated that any chemical reaction that decreases the plasticity of
virgin rubber by “cross linking” the molecules is defined as
When specifically asked by the Tribunal
if a “. . . 1 per cent vulcanization
process . . .” would be sufficient to describe a
product as vulcanized, Mr. Granville stated that “[i]t would make
it a vulcanized
product . . . yes.”29
36. Even if the Tribunal is mistaken in its understanding of the
vulcanization process, in light of Mr. Granville’s testimony
of the high degree of cross-linkage between molecules of the goods
in issue, the Tribunal is convinced that the evidence is such that
the goods in issue are nevertheless made of vulcanized rubber.
37. For the foregoing reasons, the Tribunal finds that the goods
in issue are made of vulcanized rubber and are therefore properly
classified in heading No. 40.08. It follows that they are properly
classified under tariff item No. 4008.21.90 as other plates, sheets
and strip of non-cellular vulcanized rubber, other than hard
38. The appeal is dismissed.
. R.S.C. 1985 (2d Supp.), c. 1
. Tribunal Exhibits AP-2010-011-19,
. S.C. 1997, c. 36.
. Tribunal Exhibit AP-2010-011-05A, tab
. Exhibits B-01, B-02, B-03.
. Exhibit B-04.
. Canada is a signatory to the
International Convention on the Harmonized Commodity
Description and Coding System, which governs the Harmonized
. S.C. 1997, c. 36, schedule [General
. S.C. 1997, c. 36, schedule.
. Rules 1 through 5 of the General
Rules apply to classification at the heading level (i.e. to
four digits). Under Rule 6 of the General Rules,
Rules 1 through 5 apply to classification at the subheading level
(i.e. to six digits). Similarly, the Canadian Rules make
Rules 1 through 5 of the General Rules applicable to
classification at the tariff item level (i.e. to eight digits).
. World Customs Organization, 2d,
. World Customs Organization, 4th ed.,
Brussels, 2007 [Explanatory Notes].
. Canada (Attorney General) v. Suzuki
Canada Inc., 2004 FCA 131 (CanLII) at paras. 13, 17.
. Transcript of Public Hearing,
18 January 2011, at 4.
. Tribunal Exhibit AP-2010-011-03A, tab
7; Transcript of Public Hearing, 18 January 2011, at
. Tribunal Exhibit AP-2010-011-03A, tabs
. See Korhani Canada Inc. v.
President of the Canada Border Services Agency (18 November
2008), AP-2007-008 (CITT) at 7.
. Transcript of Public Hearing,
18 January 2011, at 23.
. See Sealand of the Pacific Ltd. v.
Deputy M.N.R. (11 July 1989), 3042 (CITT) at 7, where the
Tribunal stated as follows: “It is well established in customs law
that goods must be classified according to their nature at the time
of importation. This principle was stated by the Supreme Court of
Canada in The Minister of National Revenue v. MacMillan and
Bloedel Ltd. et al.,  S.C.R. 366 and has been
affirmed on many occasions since that time.”
. Transcript of Public Hearing,
18 January 2011, at 12.
. Ibid. at 15.
. Ibid. at 30.
. Ibid. at 16.
. Exhibit B-04; Transcript of Public
Hearing, 18 January 2011, at 20.
. Transcript of Public Hearing,
18 January 2011, at 19.
. Tribunal Exhibit AP-2010-011-17A, tab 2
at para. 5.
. Ibid. at para. 6.
. Transcript of Public Hearing,
18 January 2011, at 31.
. Ibid. at 35.