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HQ 084970


September 26, 1989

CLA-2 CO:R:I 084970 GJA; 083934

CATEGORY: CLASSIFICATION

TARIFF NO.: 6815.99.4000

Mr. David Serko, Esquire
Serko and Simon
One World Trade Center, Suite 3371
New York, New York 10048

RE: Tariff classification of compressed gasket material, Durlon 8500 and Durlon 8600

Dear Mr. Serko:

This letter is in response to your request for reconsideration of 083934, dated June 13, 1989, regarding classification of two compressed gasket materials, Durlon 8500 and Durlon 8600.

FACTS:

The manufacturing process as described in ruling 083934 pertains to this ruling as well. Rubber sheeting or slabs (NBR acrylonitrile-butadiene and SBR styrene-butadiene compounds) are treated with a solvent until the rubber becomes a pasty mush. This mush is mixed with rubber curing agents. In a separate dry mix operation, Kevlar aramid fibers of one millimeter in length are combined with mineral fillers. To this dry mixture is added the pasty rubber mush. The combined mixture is processed for thirty to sixty minutes into a crumbly dough and more solvent is added to maintain pliancy.

The dough is fed into the hopper of a two-roll rubber sheet manufacturing machine, consisting of one hot and one cold roll. The hot roll is the take-up roll and the cold roll serves to compress the dough evenly across the hot roller as both rolls rotate. The rollers are set one one-thousandth of an inch apart
and small amounts of the dough are added continuously to the hopper of the sheeter. At the end of one revolution, the rollers are set another thousandth of an inch apart and the process is repeated until the desired thickness is reached. The sheet is then removed from the hot roller.

In terms of content, the NBR gasket material contains 65% mineral filler, 18% aramid fiber, 15% rubber and 2% chemicals. The SBR gasket material contains 64% mineral filler, 20% aramid fiber, 15% rubber, and 1% chemicals. In ruling 083934, we held that those materials were classifiable in 5603.00.9040, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as a nonwoven textile, whether or not impregnated, coated, covered or laminated, other, other, other, with a duty rate of 11.2 percent ad valorem, and textile category 223.

ISSUE:

Are these gasket materials properly classifiable, as sheets of vulcanized rubber in heading 4008, HTSUSA, as nonwoven textile material in heading 5603, HTSUSA, or as an article of other mineral substances, not elsewhere specified or included in heading 6815, HTSUSA?

LAW AND ANALYSIS:

The instant merchandise is an article of a mixture of synthetic rubber, textile fibers, and mineral fillers. At General Rule of Interpretation (GRI) 1, HTSUSA, classification is determined according to the terms of the headings and the relative legal notes. Accordingly, the terms of the headings suggest that the merchandise is described in part by three headings. Heading 4008 covers plates, sheets, strip...of vulcanized rubber other than hard rubber. Heading 5603 covers nonwovens, whether or not impregnated, coated, covered or laminated. Heading 6815 covers...articles of other mineral substances, not elsewhere specified or included.

Chapter 40, note 1 defines rubber to include synthetic rubber. Note 2(a) states that chapter 40 does not cover goods of Section XI (textiles and textile articles). Note 4(a) defines synthetic rubber according to its properties. According to your calculations, your products meet the requirements of note 4(a). We note that the base polymers of which your products are made, styrene-butadiene (SBR) and acrylonitrile-butadiene (NBR) are
enumerated as synthetic rubbers within heading 4002. According to your initial submission, during the production process of your gasket materials sulphur is added to vulcanize, or cure, the synthetic rubber. Thus, the synthetic rubber constituent from which your products are made meet the definition for vulcanized rubber as expressed in the Explanatory Notes at 578.

You claim that your products are classifiable in heading 4008, plates, sheets, strip, rods and profile shapes, of vulcanized rubber other than hard rubber. Chapter 40, note 9 limits the expressions plates, sheets and strip, for purposes of, among others, heading 4008, to those products and block..."uncut or simply cut to rectangular (including square) shape, whether or not having the character of articles and whether or not printed or further worked." According to the facts, your product is imported in sheets, printed with your name, but otherwise not cut to shape or further worked.

In light of the text of heading 4008, you state that your products are not hard rubber. The Explanatory Note at 578 states that hard rubber is obtained by vulcanizing rubber with a high proportion of sulphur to the point where it becomes practically inflexible and inelastic. You state that the gasket materials contain .5% sulphur by weight, and we note that the materials are clearly flexible. We agree that the term hard rubber does not encompass your products.

The Explanatory Notes to heading 4008 at 590 state that:

The classification of products made from vulcanized rubber (other than hard rubber) combined (either in the mass or on the surface) with textile materials is subject to the provisions of Note 3 to Chapter 56 and Note 4 to Chapter 59. Combinations of vulcanized rubber (other than hard rubber) with other materials remain classified in this heading provided they retain the essential character of rubber.

The instant gasket materials are vulcanized rubber combined in the mass, according to the facts, with textile fibers and mineral fillers. Thus, we turn to the cited chapter notes to determine their applicability here.

Chapter 56 note 3 directs classification in heading 5603 of nonwovens, whether or not impregnated, coated, covered or laminated with rubber whatever the nature of these materials (compact or cellular). Heading 5603 also includes nonwovens in which rubber forms the bonding substance, but where there is no coating involved. Do the aramid fibers create a nonwoven fabric? We turn to the Explanatory Notes for heading 5603 at pages 774-76 for clarification.

Therein, a nonwoven is described as a "sheet or web of predominantly textile fibers oriented directionally or randomly and bonded." According to the facts, Durlon is produced by combining rubber with solvent to form a pasty mush, which is further combined with rubber curing agents. Separately, the disassociated aramid fibers of less than a millimeter in length, and composing 18 or 20 percent of the entire material by weight, are mixed with mineral fillers. The rubber mixture is added to the mineral filler-aramid fiber mixture and more solvent is added. The finished dough is fed into a rubber sheeter machine and rolled out to form the gasket material.

The first step in the nonwoven production process is usually web formation. In the instant facts, fiber production occurs separately from the material formation, web formation never occurs, and the bonding that occurs is more accurately characterized as a vulcanization process.

In sum, the Explanatory Notes generally describe nonwovens as predominantly textile, following one of the web formation processes enumerated. While the Explanatory Notes do not necessarily limit the scope of 5603 to the production processes listed therein, the instant production process is not one commonly used in the textile industry. Overall, we find that the instant materials fail to fit within the guidelines of the Explanatory Notes for heading 5603.

Chapter 59 note 4 defines rubberized textile fabrics classifiable in heading 5906 and presupposes the existence of a base woven, braided, or knit textile fabric to which rubber is applied. See Chapter 59 note 1. Since no such textile fabric ever exists in the instant product, this note is not applicable.

Since the instant material is not classifiable according to the provisions of either of the preceding notes, we return to the language of the Explanatory Notes for heading 4008. As noted above, combinations of vulcanized rubber with other materials remain classified in this heading if they retain the essential character of rubber. However, we have not completed applying GRI 1 and need not yet determine the essential character of these products.

The material of chief weight in both Durlon 8500 and 8600 is mineral. Magnesium metasilicate or calcium metasilicate is the predominant mineral, depending on the product, followed by barium sulfate, calcium carbonate, magnesium silicate, silica, and perhaps minor amounts of vermiculite, and the like. The General Explanatory Notes for Chapter 68, at 895-96, state that the chapter covers goods of mineral materials which are agglomerated by means of binders and may be reinforced. Further, these goods may be obtained by shaping operations which alter the form rather than the nature of the constituent material. Thus, chapter 68 allows other substances to be mixed with minerals and remain classifiable as articles of minerals.

In the instant materials, the minerals and fibers are agglomerated by means of the rubber acting as the binder. The aramid fibers provide reinforcement to the article in the form of strengthening and flexibility. Heading 6815 most specifically covers this merchandise, as an article of other mineral substances, not elsewhere specified or included. By virtue of the scope of chapter 68, the gasket materials are accurately described as mineral in nature, with the rubber present for its binding properties.

However, the rubber allegedly provides more than binding properties to the gasket materials. Counsel for Durabla claims that the critical performance criteria for the gasket materials are sealing and compressibility and that both are provided by the rubber component. Accordingly, we find that this merchandise is described in part only by both headings 4008 and 6815, and by application of GRI 2(b) and 3(a), we turn to GRI 3(b) to determine the material which provides the essential character to the gasket materials.

A gasket is a seal or packing used to make a pipe, or other joint, air- or fluid-tight. See Webster's Third New International Dictionary, 938 (unabridged, 1971 ed.). Regarding the nature of the material and its role in relation to the use of the gasket material, the vulcanized rubber not only binds the
material, but provides a certain amount of compressibility when the gasket is in use, and provides impermeability so that gas or liquid does not transfer through the material from the pipes.

The nature and role of each of the six or eight mineral fillers is to provide thermal and chemical resistance to the material. Together the fillers act as the compounding agent to extend the bulk of the rubber and contribute significantly to the functioning of the rubber. Some of the fillers also have sealing, drying or binding properties.

Counsel for Durabla provides evidence that both the academic community and industry experts view vulcanized rubber with significant amounts of compound fillers as a product of the rubber industry. While this may be supportive, it is not dispositive of classification within the HTSUS. Rather, classification must be determined according to the GRIs.

At GRI 3(b), the mineral fillers provide as many important attributes as does the vulcanized rubber to the gasket's performance, that is, to the prevention of the escape of a gas or fluid at pipe joints. The essential character of the product cannot be determined to be attributable to either component. As a result, application of GRI 3(c) is required, and the materials are classifiable in the heading occurring latter in numerical order between headings 4008 and 6815.

HOLDING:

Durlon 8500 and Durlon 8600 are classified in subheading 6815.99.4000, HTSUSA, as articles of other mineral substances, not elsewhere specified or included, dutiable at the general rate of 4.5% ad valorem. Under the United States-Canada Free Trade Agreement, goods manufactured in Canada and classified in subheading 6815.99.4000, HTSUSA, are eligible for a duty rate of 4% percent ad valorem if all applicable regulations are met. See General Note 3(c)(vii), HTSUSA, for further details.

For the above reasons, ruling letter 083934, dated June 13, 1989, is hereby revoked, in accordance with 19 CFR Part 177.9(d).

Sincerely,

Harvey B. Fox,
Director, Office of

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