HQ 0084682 - Classification of belting items from South Africa - United States International Trade Commision Rulings

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HQ 084682

August 25, 1989

CLA-2 CO:R:C:G 084682 DPS

CATEGORY: CLASSIFICATION

TARIFF NO.: 5910.00.1000, 5903.10, 3926.90.5700

Mr. H.M. Wells
Executive Vice President
The Goodyear Tire & Rubber Company
Akron, Ohio 44316-0001

RE: Classification of belting items from South Africa

Dear Mr. Wells:

Your letter of April 25, 1989, to our New York Office, has been referred to this office for a ruling on the tariff classification of the semi-finished conveyor belt carcass and the finished conveyor belt, imported from South Africa, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Samples of the belting items were submitted with your letter. Your inquiry also addressed the issue of whether these articles from South Africa are prohibited entry into the United States pursuant to the South African Transactions Regulations, codified at 31 CFR, Part 545 (1989).

As our New York office informed you, the HTSUSA, effective January 1, 1989, now supersedes the Tariff Schedules of the United States (TSUS). Whether the belting items at issue are subject to the prohibited entry provisions of the South African Transactions Regulations is dependent upon their classification under the HTSUSA.

FACTS:

The items requiring HTSUSA classification are: (1) a semi- finished conveyor belt carcass; and (2) a finished conveyor belt. The product is manufactured by The Goodyear Tyre & Rubber Company (S.A.)(Proprietary) Limited ("Goodyear South Africa"), a wholly-owned South African subsidiary of Goodyear. As stated by the importer, the semi-finished product consists of solid woven fabric impregnated with PVC (polyvinyl chloride) plastisol to form a semi-finished conveyor carcass. The solid woven fabric consists of a polyester warp strength member, twisted nylon/cotton weft, and a cotton face warp yarn in a single ply. The semi-finished conveyor belt carcass consists of approximately 30 to 50 percent solid woven fabric by weight. It is currently manufactured in widths of up to approximately 60 inches and in lengths of approximately 300 meters. It can be manufactured in black or brown colors.

According to the importer, Goodyear South Africa uses the semi-finished conveyor belt described above to manufacture finished conveyor belting. The semi-finished conveyor belt carcass is coated with PVC in coating thicknesses that range from approximately 0.8 millimeters to 3.0 millimeters, resulting in a finished conveyor belt which, by weight, consists of approximately 55 to 80 percent PVC and approximately 20 to 45 percent solid woven fabric. The thickness of the finished conveyor belt ranges from approximately 0.25 inches to 0.60 inches depending on the particular class of belt involved. The finished conveyor belt is currently manufactured in widths of up to approximately 60 inches and in lengths of up to approximately 300 meters. The finished conveyor belt is designed to convey coal in underground mining operations.

ISSUE:

Whether the semi-finished and finished conveyor belts at issue are properly classifiable as articles of textile within a heading in Chapter 59, HTSUSA, or as articles of plastic within a Chapter 39, HTSUSA, heading; and, whether the items, as classified, are subject to the prohibited entry provisions of the South African Transactions Regulations, codified at 31 CFR 545.211 (1989).

LAW AND ANALYSIS:

The General Rules for the Interpretation of the Harmonized System (GRI's) govern classification under the Harmonized Tariff Schedule. According to GRI 1, the primary consideration in determining whether merchandise should be classified in a heading should be given to the language of the heading and to any relevant chapter or section notes. Inasmuch as the articles in question are constructed using two distinct materials, textiles and plastics, at least two headings may apply to the belting items at issue in this case. The relevant headings include:

(a) 5903.10, textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: with polyvinyl chloride;

(b) 5910.00.1000, transmission or conveyor belts or belting, of textile material, whether or not reinforced with metal or other material: of man- made fibers;

(c) 3921.12.1100, other plates, sheets, film, foil and strip of plastics: cellular: of polymers of vinyl chloride: combined with textile materials: products with textile components in which man-made fibers predominate by weight over any other single textile fiber: over 70 percent by weight of plastics; and

(d) 3926.90.5700, other articles of plastics and articles of other materials of headings 3901 to 3914: other: belting and belts, for machinery: containing textile fibers: other: with textile components in which man-made fibers predominate by weight over any other textile fiber;

The Section and Chapter Notes relevant to the above headings provide further guidance in determining the proper classification of the belting items at issue. The relevant notes also raise questions with regard to conflicting provisions within the HTSUSA.

A close examination of the Section and Chapter notes associated with Section XI, Chapter 59, and Section VII, Chapter 39 reveals confusion with regard to the proper classification of the belting items. Section XI, Note 1(h) generally excludes woven, knitted or crocheted fabrics, impregnated, coated, covered or laminated with plastics, of Chapter 39, from classification within the section (which includes chapters 50 to 63). However, Heading 5903 is an express provision for the type of article excluded by Note 1(h), Section XI. The relevant chapter note concerning Heading 5903 states, in pertinent part:

2. Heading 5903 applies to: (a) Textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular), other than:

(3) Products in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of color (chapter 39);

When read together, the chapter note serves to clarify which items are not excluded by the section note. For the purposes of this ruling, Chapter 59, Note 2 serves to include items within the chapter which, otherwise, could be interpreted to be excluded by Section XI, Note 1(h).

The product at issue is comprised of solid woven fabric which is coated on both sides with PVC. The coating can be seen with the naked eye, which, according to Chapter 59, Note 2(a)(3), effectively excludes classification from Heading 5903.

Another heading within Chapter 59, Heading 5910, and its concomitant Chapter Note specifically provides for "Transmission or conveyor belts or belting, of textile material, whether or not reinforced with metal or other material." No language is provided in the notes which defines "textile material" for the purposes of Heading 5910. Nor does the note applicable to 5903 expand its application to all headings within the chapter. The only transmission or conveyor belting, of textile material, excluded by Chapter 59, Note 6, is belting of a thickness of less than 3 millimeters. Here, the subject belting measured in its thinnest, semi-finished form, ranges in width between 5 and 7 millimeters. When finished, the belting's thickness ranges from 7 to 17 millimeters. Because the subject merchandise is conveyor belting constructed of textile material and plastic, with a thickness of over 3 millimeters, regardless of whether its plastic component is considered to be "reinforcement," the product appears to be classifiable in subheading 5910.00.1000, HTSUSA, as "Transmission or conveyor belts or belting, of textile material, whether or not reinforced with metal or other material: Of man- made fibers."

A close reading of the Section XI, Chapter 59 and Chapter 39 Notes, in conjunction with the relevant Explanatory Notes to the HTSUSA, which constitute the official interpretation of the tariff at the international level, is instructive in determining the proper HTSUSA classification. Note 2(l), Chapter 39, excludes "Goods of section XI (textiles and textile articles)" from classification within Chapter 39 in the same way that Section XI, Note 1(h) excludes woven fabrics, impregnated or coated with plastics, of Chapter 39, from classification within the textile section. The Explanatory Notes to Chapters 39 and 59 indicate that classification of the subject belting items is possible in either chapter. The Explanatory Notes to Chapter 39, at page 554, state that "classification of plastics and textile combinations is essentially governed by Note 1(h) to Section XI, Note 3 to Chapter 56 and Note 2 to Chapter 59." The Explanatory Notes to Chapter 39 further provide, in pertinent part:

The following products are also covered by this Chapter: ...

(b) Textile fabrics and nonwovens, either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of colour;
The Explanatory Notes to Chapter 59, at page 821, state that Heading 5910 "includes belts and belting made from woven synthetic fibres, in particular, polyamides, coated, covered or laminated with plastics." The note further states:

Transmission or conveyor belts (i.e., lengths of belting cut to size and either with the ends joined together or furnished with fastenings for joining them together) are classified here irrespective of the thickness of the material.

The Explanatory Notes indicate that the subject conveyor belting is classifiable in both chapters, 39 and 59. This being the case, GRI 3(a) requires that the heading which provides the most specific description of the article shall be preferred over headings providing a more general description. Here, Heading 5910 refers to "conveyor belts or belting of textile material," Heading 3921 refers to "other plates, sheets, film, foil and strip of plastics," and Heading 3926 refers to "other articles of plastics and articles of other materials of headings 3901 to 3914." The belting at issue is specifically referred to in subheadings 3926.90.5700 and 5910.00.1000. Because the two possible subheadings can be considered to be equally specific pursuant to GRI 3(a), resort to GRI 3(b) is necessary.

GRI 3(b) requires that goods which cannot be classified by reference to 3(a), be classified as if they consisted of the material or component which gives them their essential character. Here, the textile/plastic combination belting has varying quantities of plastic, depending on the needs of the party utilizing the product. The textile component, which provides the underlying structure of the belting, remains constant. In light of these circumstances, no essential character determination can be made, because neither the plastic nor the textile component of the conveyor belting can be said to give it its essential character. Therefore, resort to GRI 3(c) is necessary. GRI 3(c) provides:

When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

Pursuant to GRI 3(c), the subject conveyor belting is properly classifiable under subheading 5910.00.1000, HTSUSA.

In accordance with the Comprehensive Anti-Apartheid Act of 1986, 22 U.S.C. 5001-5116, and the South African Transactions Regulations, codified at 31 CFR, Part 545, certain items produced or manufactured in South Africa are prohibited from importation into the United States. 31 CFR 545.211, specifically prohibits importation of South African uranium ore, uranium oxide, coal and textiles to the United States. The Office of Foreign Assets Control, Department of Treasury, regularly notifies the Customs Service of prohibited South African articles under the HTSUSA. South African articles listed by the Office of Foreign Assets Control as prohibited from entering the United States include, inter alia, the following HTSUSA classifications: all textile articles including merchandise provided for in HTSUSA chapters 50 through 63; and items classifiable under subheading 3921.12.11 and subheading 3926.90.57.

HOLDING:

The semi-finished and finished conveyor belting made of textile and plastics, manufactured in South Africa, is properly classifiable under subheading 5910.00.1000, HTSUSA. Items from South Africa with this classification are prohibited from entering the United States pursuant to the South African Transactions Regulations (specifically, 31 CFR 545.211). Accordingly, Goodyear's proposed importation of conveyor belting items is prohibited. Further questions concerning the prohibition on South African imports should be directed to the Office of Foreign Assets Control, Department of the Treasury, Washington, D.C.

Sincerely,

John Durant, Director
Commercial Rulings Division

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