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HQ 088446

May 2, 1991

CLA-2 CO:R:C:T 088446 KWM

CATEGORY: CLASSIFICATION

TARIFF No.: 5603.00.90

Mr. Richard Macchione
Boston Bay Brokers, Inc.
225 Friend Street, Suite 700-1
Boston, MA 02114

RE: Reconsideration of NYRL 851481; Hub Fabric Leather Co.; LAJTA; Nonwoven fabric; man-made fiber; impregnated with rubber.

Dear Mr. Macchione:

This is in response to your letter to our New York office dated October 16, 1990, requesting as reconsideration of New York Ruling Letter (NYRL) 851481. Your letter and the samples provided were forwarded to this office for a response. After consideration of the points raised, we have determined that NYRL should not be modified or revoked.

FACTS:

One of the products at issue in NYRL 851481 is referred to as "LAJTA" and is imported from Hungary. LAJTA is made from a substrate material containing 40% viscose, 40% polypropylene and 20% polyamide, all of which are man-made textile substances. The fibers are cross lapped, needled and compressed to form a nonwoven textile material (the substrate). The sample substrate is a rather dense and somewhat thick web. The substrate material is dried and then impregnated in a nitrile rubber bath, dried, and impregnated with nitrile rubber a second time. After a final drying, the material is "split (shaved)" into layers of varying thickness, depending on the desired end use.

You do not dispute the classification of the other products in NYRL 851481. Based on your understanding of the Explanatory Notes, you believe the classification of the LAJTA material is incorrect:

You will note from the enclosed substrate that it has the appearance of a felt like material as described in item 56.02, (stitch bonded & needled) page 773 & 774 of the General Explanatory Notes. This, in our contention makes this a "felt" material . . .

It is therefore our contention that this material is not subject to the various references to the Explanatory Notes as you have indicated but is an exception to these references & should be classified under Chapter 39 or 40.

Specifically exempted under 56.02, Paragraph (2), (a) &

Letter dated October 16, 1990.

ISSUES:

Is the LAJTA material at issue in NYRL 851481 a nonwoven textile or a felt?

Is the LAJTA material impregnated, coated, covered or laminated?

Is the LAJTA material classified as a textile material or a rubber product?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the harmonized system 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 relevant 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 GRI's may be applied, taken in order.

Two classification questions must be answered here, each independent of the other. One pertains to the construction of the material: is it a felt or a nonwoven? The second has to do with the combination of the textile and rubber elements: is the LAJTA impregnated, coated, covered or laminated?

Felt v. Nonwoven

While we agree with your assertion that the sample substrate product may have the appearance of felt, classification as a "felt" or "nonwoven" is determined by other factors. Legal Note 2 to Chapter 44, HTSUSA, states:

2. The term "felt" includes needleloom felt and fabrics consisting of a web of textile fibers the cohesion of which has been enhanced by a stitch-bonding process using fibers from the web itself.

Emphasis in the original. Nonwovens are described in the Explanatory Notes to heading 5603, HTSUSA:

A nonwoven is a sheet or web of predominantly textile fibres oriented directionally or randomly and bonded.

The Explanatory Notes also detail the various methods of producing nonwoven textiles. Your submission does not detail the method of construction of the substrate, except to describe it as stitch bonded and needled. We do not consider the substrate to be a textile within the scope of the "felt" provisions despite the needling procedure. Any resemblance to felt is lost with the shaving process, when the cohesion of the fibers themselves is lost to the bonding of the rubber (described below). It is Customs' opinion that the term
nonwoven more accurately describes the material. Therefore, we consider it a nonwoven.

Impregnated, coated, covered or laminated

Note 3 to Chapter 56, HTSUSA, provides guidelines for the classification of textiles "impregnated, coated, covered or laminated":

3. Headings 56.02 and 56.03 cover respectively felt and nonwovens, impregnated, coated, covered or laminated with plastics or rubber whatever the nature of these materials (compact or cellular).

Heading 56.03 also includes nonwovens in which plastics or rubber forms the bonding substance.

Heading 56.02 and 56.03 do not, however, cover:

(a) Felt impregnated, coated, covered or laminated with plastics or rubber, containing 50% or less by weight of textile material or felt completely embedded in plastics or rubber (Chapter 39 or 40); or

(b) Nonwovens either completely embedded in plastics or rubber, or entirely coated or covered on both sides with such materials, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of colour (Chapter 39 or 40); or
(c) Plates, sheets or strip of cellular rubber combined with felt or nonwovens, where the textile material is present merely for reinforcing purposes (Chapter 39 or 40).

Your letter would appear to assert that the LAJTA material at issue is excluded from Chapter 56, HTSUSA, under one or more of these exclusions. The material is not, however, completely embedded in the rubber, nor is it fully covered or coated on both sides by rubber. Lastly, we do not believe that the textile is present here merely for reinforcing purposes. None of the exclusions apply to this material.

The result of the various notes regarding textile and rubber combinations is to classify as a textile any material which is essentially textile and those which are rubber as rubber. In this case, the most accurate description of the nitrile rubber Bath process may be "impregnation." The nonwoven textile becomes impregnated with the nitrile rubber, but does not lose its character to the rubber component. As your letter states, and the Chapter Notes describe, the rubber forms the bonding substance for a nonwoven textile.

Impregnated nonwoven textiles of Chapter 56, HTSUSA

We consider the LAJTA material to be a nonwoven textile impregnated with rubber. Although the appearance of the substrate material may be similar to that of felt, the
formation and bonding process brings the material, as imported, within the scope of heading 5603, which provides for impregnated nonwovens. Even if we were to accept your assertion that this is a felt material, the only possible modification to NYRL 851481 would be to classify the product as an impregnated felt rather than an impregnated nonwoven. We believe, however, that any resemblance to a felt is lost when the substrate is split into sheet of nonwoven bonded by the rubber impregnation. This material is not a rubber product of Chapter 39, because it is does not fall within any of the exclusions provided for in the nomenclature. It is not excluded whether we consider it a felt or a nonwoven.

HOLDING:

New York Ruling Letter 851481 is affirmed. The LAJTA material is classified in subheading 5603.00.90, HTSUSA. The applicable rate of duty on these goods is 12.5 percent ad valorem.

Sincerely,

John A. Durant
Director
Commercial Rulings Division

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