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HQ 961703




June 5, 1998

CLA-2 RR:CR:GC 961703 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 4005.91.0000

Mr. Mark N. Bravin
Mr. Gregory S. Menegaz
Morgan Lewis & Bockius
1800 M Street N.W.
Washington, D.C. 20036-5869

RE: New York Ruling (NY) C84619, dated April 6, 1998, REVOKED; Tariff Classification of NV Synthetic Rubber from Japan

Dear Messrs. Bravin and Menegaz:

Your letter of April 14, 1998 requested reconsideration of NY C84619, dated April 6, 1998, pertaining to the classification of NV Synthetic Rubber under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). In your letter, you indicate that Customs did not consider all of the available technical data concerning the composition of the rubber and you have requested this office to reconsider the ruling in light of the additional information submitted with your request.

This letter is to inform you that NY C84619 no longer reflects the view of the Customs Service and is revoked in accordance with section 177.9(d) of the Customs Regulations (19 CFR 177.9(d)). Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub.L. 103-182, 107 Stat. 2057, 2186 (1993), publication is not required when the revocation is issued within 60 days of the issuance of the ruling. The following represents our position.

FACTS:

NV Synthetic Rubber is a blend of butadiene acrylonitrile copolymer synthetic rubber (NBR) and polyvinyl chloride (PVC) with a substantial amount of plasticizer and minimum allowable amounts of antioxidants. This ruling pertains to a range of products containing differing percentages of the basic ingredients; however, even though the identity of the plasticizer varies from one NV product to another, no additional ingredients are present. Also, the products in all stated compositions are intermediates that will not be used in the form in which imported, but will be further processed with other components according to the particular needs of the importer. The products are imported in sheets 600 mm by 400 mm by 10 mm and are unvulcanized.

The products meet the requirements of Chapter 40, Note 4(a) HTSUS, sometimes referred to as the elongation and elasticity test. There is no mention of the presence of the plasticizer in NY C84619.

ISSUE:

Whether NV Synthetic Rubber is an acrylonitrile-butadiene rubber (NBR) of heading 4002 or a compounded rubber of heading 4005.

LAW AND ANALYSIS:

Merchandise imported into the U.S. is classified under the HTSUSA. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUSA and are to be considered statutory provisions of law for all purposes.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification of the HTSUSA by offering guidance in understanding the scope of the headings and the GRIs.

Heading 4002, HTSUSA, provides in part for "Synthetic rubber and factice derived from oils, in primary forms or in plates, sheets or strip." This heading, however, is subject to Chapter Note 5(a)(iii) which states "[h]eadings 4001 and 4002 do not apply to any rubber or mixture of rubbers which has been compounded, before or after coagulation, with:...(iii) Pasticizers [read: Plasticizers]...." Consequently, the presence of plasticizers in a range of approximately 2 percent to approximately 10 percent by weight cannot be ignored and will preclude classification in heading 4002.

Because these products are unvulcanized and are neither reclaimed product of heading 4003, nor waste, parings or scrap of heading 4004, we next consider heading 4005, providing for "Compounded rubber, unvulcanized, in primary forms or in plates, sheets or strip." The ENs to heading 4005 do not provide much assistance in this case; however, scientific and technical literature from the rubber industry does clarify the meaning of compounded.

The term "compounded rubber" is defined in the Polymer Technology Dictionary 84 (Whelan, ed., 1994) as "material which contains all additives except the sulfur and/or, it means material which contains all additives including sulfur." In a more general context, the term "additive" is defined in The Condensed Chemical Dictionary, 12th Ed., as "any substance added to a base material in low concentrations for a definite purpose." This includes "antioxidants, inhibitors, thickeners, plasticizers, ...colorants, etc." The PVC plastic material can be viewed as an additive, since it helps to improve the ozone resistance properties and increase stiffness of the rubber. Bhowmick and Stephens, eds. Handbook of Elastomers, New Developments and Technology 273. In addition, the inclusion of the PVC is said to improve the flame-retardant properties of the rubber. Morton, ed., Rubber Technology, 3d ed., 236. Thus, the inclusion of substantial amounts of PVC as part of the compounding process would not remove the products from consideration as compounded rubber of heading 4005. This is noted in the context of the ENs to heading 4005 which do mention a number of substances used in compounding, such as coloring agents or plasticizers, but do not specifically mention PVC.

It should be noted that EN 4002(c)(3) specifically mentions "Mixtures of unsaturated synthetic substances with saturated synthetic high polymers (e.g. mixtures of acrylonitrile-butadiene rubber and polyvinyl chloride)" as being included under heading 4002. While this statement seems to be in accord with the conclusion reached in the New York ruling and in conflict with the conclusion reached here, we must assume that such a product would not have a separately identifiable plasticizer that does not react or bond chemically with the PVC, as is the case here.

These products with the stated ingredients are classified in heading 4005, HTSUS, the provision for "Compounded rubber, unvulcanized, in primary forms or in plates, sheets or strip:" and specifically under subheading 4005.91.0000, as "Other: Plates, sheets, and strip" subject to a free rate of duty under column one.

HOLDING:

NV synthetic rubber is classified in subheading 4005.91.0000, HTSUSA, the provision for "Compounded rubber, unvulcanized, in primary forms or in plates, sheets or strip: Other: Plates, sheets, and strip" subject to a free rate of duty under column one.

NY C84619 is revoked.

Sincerely,

John Durant, Director
Commercial Rulings Division


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