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HQ 089454


October 3, 1991

CLA-2 CO:R:C:T 089454 KWM

CATEGORY: CLASSIFICATION

TARIFF NO.: 5407.42.0060

Mr. Robert W. Murphy
Regional Director, Commercial Operations
United States Customs Service
Suite 1501
55 East Monroe Street
Chicago, Illinois 60603-5790

RE: Application for Further Review of Protest Number 3801-9-003040; Woven fabric; Not coated or covered; Not rubberized; SBR; Styrene: Butadiene; Latex; Rubber.

Dear Mr. Murphy:

This is in response to the application for further review of your decision in protest number 3801-9-003040, regarding styrene-butadiene rubber "coated" nylon fabric. After considering the information presented, and examining the sample provided, we find that the protest decision should be affirmed.

FACTS:

The merchandise at issue is referred to by the protestant by the trade name "Ballistic" fabric. Ballistic fabric is composed of "100 percent nylon, containing man-made Number 1330 DTEX Nylon" to which has been applied a latex "coating" or "backing." The latex is a styrene-butadiene rubber (SBR), and it is applied only to one side of the woven nylon fabric. According to the protestant, the fabric will enter the United States in 540 inch wide rolls. The weight per lineal yard is 16.75 ounces unfinished, and 18.0 ounces per lineal yard finished (1.25 ounces of SBR per lineal yard). Therefore, the percentages by weight of textile to rubber are approximately 93 percent textile and 7 percent rubber. Laboratory analysis confirms this breakdown (92 percent textile and 8 percent rubber).

At the time of entry, the protestant classified the merchandise as a textile fabric coated with plastics under heading 5903, HTSUSA. The port of Detroit liquidated the goods under heading 5516, HTSUSA, as a woven fabric of artificial staple fibers. The protestant now advocates re-liquidating the goods under heading 5906, HTSUSA, as rubberized textile fabrics.

ISSUE:

Is the merchandise classified as plastic coated textile (heading 5903, HTSUSA), as rubberized textile fabric (heading 5906, HTSUSA) or as a woven fabric of artificial staple fibers (heading 5516, HTSUSA)?

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.

Rubberized textiles

Internal Advice request 55/90 was issued on August 8, 1991, to the District Director in Buffalo regarding upholstery fabrics coated with SBR and imported by the protestant. The SBR compound used to coat the fabric at issue in I/A 55/90 was 48 percent styrene and 52 percent butadiene, and was found to be a plastic, rather than rubber material:

While dumbbell specimens of the liquid polymer used to coat the fabrics at issue meet the stretch and return requirements of Note 4, Chapter 40, they have not been vulcanized with sulphur. Consequently, we have been advised by the Office of Laboratories & Scientific Services that the styrene butadiene copolymer with which the instant fabrics have been coated is not "rubber" for the purposes of heading 5906.

Moreover, the coating applied to the instant fabrics is not an SBR rubber, i.e., a styrene butadiene copolymer consisting essentially of butadiene polymer chains, throughout which are randomly dispersed single styrene units. The typical SBR polymer consists of 23 percent styrene and 77 butadiene by weight. Kirk-Othmer, Encyclopedia of Chemical Technology (3rd ed.), 612. Due to the large amount of butadiene, which gives the copolymer its rubber characteristics, and the absence of styrene chains, which are plastic in character, a true SBR would easily meet the requirements of Note 4, Chapter 40.

However, the block copolymer used on the fabrics in question has a different chemical structure from SBR. In contrast with SBR, block copolymers consist of chains of butadiene polymer and chains of styrene polymer that have been grafted together. In addition, block copolymers are rarely, if ever, used in a cured or cross-linked (vulcanized ) state. Accordingly, Customs will presume that a copolymer with a styrene content greater than 40 percent is not a synthetic rubber as defined by Note 4, Chapter 40. This presumption is rebuttable if it can be demonstrated that the substance does indeed meet the recovery, elongation and vulcanization requirements set forth in Note 4.

Emphasis added. While the protestant here has not provided a breakdown of the styrene and butadiene components of the SBR coating used here, we believe that it is similar in composition to that used by the protestant for the fabric in I/A 55/90. Both the absence of a vulcanization process and a styrene content greater than 40 percent will serve to exclude the SBR from consideration as a "rubber" for heading 5906 purposes.

Protestant here appears to argue that the mere application of rubber to a fabric renders it "rubberized" for tariff purposes. We do not agree. While the legal notes and tariff terms do not require that a minimum amount of rubber be present for heading 5906, HTSUSA, purposes, the terms "coating" must be applied in a consistent manner throughout the nomenclature. Customs has held that a "coating" generally implies that a separate, distinguishable substance has been combined with another material. In this case, we find that such elusive quantities of rubber, whose presence cannot be detected by standard laboratory analysis, should be treated as non-coated for tariff purposes. The instant material is not a rubberized fabric of heading 5906, HTSUSA.

Plastic coated textiles

If the SBR material is not a rubber, it is considered a plastics material. Heading 5903, HTSUSA, provides for textile fabrics impregnated, coated, covered or laminated with plastics. However, the scope of this heading is limited by Note 2, Chapter 59, HTSUSA, which requires that in order for a fabric to be considered coated for tariff purposes, the impregnation, coating covering or lamination must be visible to the naked eye. The styrene-butadiene coating on the fabric at issue does not obscure the weave or otherwise affect the surface characteristics of the nylon material. The rubber substance is visible neither to the naked eye nor under magnification (10x). The instant material is not a coated fabric of heading 5903, HTSUSA.

Constituent material

Because the merchandise is not classifiable eo nomine as either rubberized textile (heading 5906) or as plastic coated textile (heading 5903), it must be classified as a composite material by determining essential character (GRI 3). Two component materials are present here: woven textile fabric and SBR. The predominant component is clearly the nylon fabric, which appears to be dyed and composed of nylon filament yarn. The material is therefore classified as a woven fabric of synthetic filament yarn, specifically nylon.

HOLDING:

The merchandise at issue, a woven nylon textile fabric combined with styrene-butadiene rubber is not coated for the purposes of either heading 5906 or 5903, HTSUSA. It is classified according to its' essential character of woven fabric, of nylon filament yarn, in subheading 5407.42.0060, HTSUSA. The applicable rate of duty is 17 percent ad valorem. Textile visa category 620 is associated with this classification.

The designated textile and apparel category may be subdivided into parts. If so, the visa and quota category requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to the importation of this merchandise to determine the current status of any import restraints or requirements.

A copy of this ruling should be attached to the notice of ruling (CF 19) to be sent to the protestant.

Sincerely,

John A. Durant, Director
Commercial Rulings Division

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