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HQ 966534




November 6, 2003

CLA-2 RR:CR:TE

CATEGORY: CLASSIFICATION

TARIFF NO.: 5407.42.0030

Ms. Pam Brown
Cargo U.K., Inc.
4790 Aviation Parkway
Atlanta, GA 30349

RE: Modification of New York Ruling Letter E87150, dated May 5, 2000; Classification of Resorcinol Formaldehyde Latex Dipped Fabric

Dear Ms. Brown:

This letter concerns New York Ruling Letter (NY) E87150, issued to you on May 5, 2000, regarding the tariff classification of fabric treated with resorcinol formaldehyde latex (RFL) under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). After review of that ruling, the Bureau of Customs and Border Protection (CBP) has determined that the classification for two of the eight samples considered was incorrect. For the reasons that follow, this ruling modifies NY E87150.

Pursuant to section 625(c)(1) Tariff Act of 1930 (19 U.S.C. 1625(c)(1)) as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-82, 107 Stat. 2057, 2186), notice of the proposed modification of NY E87150 was published on October 1, 2003, in the Customs Bulletin, Volume 37, Number 40. As explained in the notice, the period within which to submit comments on this proposal was until October 31, 2003. No comments were received in response to this notice.

FACTS:

The articles under consideration are two samples of fabric, identified as Style T0148 Dipped and Style T0359 Dipped. In NY E87150, CBP described the two samples as follows:

Style T0148 Dipped is a plain woven fabric composed of 100% filament nylon. It contains 48 warp ends per centimeter and 18 filling picks per centimeter. Weighing 60 g/m2, this product will be imported in 108 centimeter widths. This fabric has been dipped in resorcinol formaldehyde latex which prepares the fabric to be coated covered or laminated with rubber by promoting the adhesion of the rubber to the fabric. Style T0359 Dipped is a leno woven fabric composed of 100% filament nylon. It contains 32 warp ends per centimeter and 19 filling picks per centimeter. Weighing 70 g/m2, this product will be imported in 80 centimeter widths. This fabric has been dipped in resorcinol formaldehyde latex which prepares the fabric to be coated covered or laminated with rubber by promoting the adhesion of the rubber to the fabric. The resorcinol formaldehyde latex is considered a rubber coating for the purposes of the Harmonized Tariff Schedules.

In NY E87150, we classified Style T0148 Dipped and Style T0359 Dipped under subheading 5906.99.2500, HTSUSA, which provides for “rubberized textile fabrics, other than those of heading 5902, other, other, of man-made fibers, other.”

ISSUE:

What is the proper classification of fabric treated with resorcinol formaldehyde latex under the HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI taken in order. The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of these headings.

Heading 5906, HTSUSA, provides for rubberized textile fabrics, other than those of heading 5902 (tire cord fabric). Note 4, Chapter 59, HTSUSA, provides in pertinent part:

For the purposes of heading 5906, the expression "rubberized textile fabrics" means:

(a) Textile fabrics impregnated, coated, covered or laminated with rubber:
i) Weighing not more than 1,500 g/m2; or

(ii) Weighing more than 1,500 g/m2 and containing more than 50 percent by weight of textile material;

The term “rubber” is not defined in either the notes to Section XI (Textiles and Textile Articles) or the notes to chapter 59, HTSUSA. However, Note 1 to chapter 40 HTSUSA, states in relevant part that “Except where the context otherwise requires, throughout the tariff schedule the expression ‘rubber’ means the following products, whether or not vulcanized or hard: . . . natural rubber, . . . synthetic rubber.” Note 4(a) to chapter 40 states that in Note 1 to chapter 40, the expression “synthetic rubber” means:

Unsaturated synthetic substances which can be irreversibly transformed by vulcanization with sulfur into non-themoplastic substances which, at a temperature between 18o and 29o C, will not break on being extended to three times their original length and will return, after being extended twice their original length, within a period of 5 minutes, to a length not greater than 1½ times their original length. For purposes of this test, substances necessary for the cross-linking, such as vulcanizing activators or accelerators, may be added; the presence of substances as provided for by note 5(b)(ii) and (iii) is also permitted. However, the presence of any substances not necessary for the cross-linking, such as extenders, plasticizers and fillers, is not permitted.

Thus, to consider a substance to be a rubber, Note 4(a) sets forth a two-pronged test. First, the substance must be vulcanized (not merely cross-linked). Second, the vulcanized material must satisfy an extension-recovery test as described in Note 4(a). CBP has consistently applied this test to determine whether a substance is a “rubber” for tariff classification purposes. See e.g., HQ 964704, dated April 11, 2001; HQ 963528, dated July 27, 2000; and HQ 956863, dated May 2, 1995.

Resorcinol Formaldehyde Latex (RFL) is a commonly used treatment for rubber to fabric adhesions generally used on high-tenacity synthetic fabric to facilitate adhesion between fabric and rubber by improving the “grab” of rubber to textile. RFL is applied at the fabric mill where the treated fabric is dried and heat set at the same time, producing an orange tint to the fabric. However, a more thorough examination of the physical characteristics of RFL reveals that RFL is not in fact a rubber.

The word “latex” in RFL can have different meanings. The American Heritage Dictionary of the English Language, Fourth Edition (2000) defines “latex” as follows:

The colorless or milky sap of certain plants, such as the poinsettia or milkweed, that coagulates on exposure to air.

An emulsion of rubber or plastic globules in water, used in paints, adhesives, and various synthetic rubber products.

Concerning RFL, CBP believes that the word “latex” is not intended to signify that natural rubber is a component or ingredient of the RFL solution. Rather, CBP finds that “latex” is a descriptive term signifying that the resorcinol formaldehyde solution is in the form of an emulsion containing some amount of synthetic rubber or plastic products.

In NY E87150, in finding that Style T0148 Dipped and Style T0359 Dipped were “rubberized,” we relied on earlier laboratory analyses of RFL that used limited testing procedures. In HQ 087266 and HQ 087267, both dated August 16, 1990, CBP performed laboratory tests on fabric samples treated with RFL without testing the RFL solution by itself prior to the solution being applied to the fabric. The laboratory analyses were made in part by infrared spectrometry, wherein the spectrograph bands or peaks were compared with known reference bands and appeared to indicate the presence of RFL and SBR rubber. However, the mere presence of a styrene-butadiene rubber (SBR) in the RFL treated fabric does not mean that the RFL solution is considered a rubber for tariff classification purposes. For RFL treated fabric to be considered a rubberized textile fabric, the RFL solution must first be considered a rubber by satisfying the requirements set forth in Note 4(a) to chapter 40, HTSUSA.

Recently, CBP reviewed independent laboratory test results on resorcinol formaldehyde latex (RFL) solution. Based on the commercial applications for RFL fabric, we presume that each manufacturer uses essentially the same or similar composition of RFL on high-tenacity synthetic fabric. The laboratory followed the vulcanization and other testing requirements set forth in Note 4(a) to chapter 40, HTSUSA, as described above. After testing and analysis, the laboratory concluded that RFL, without additives, fails to pass the vulcanization and extensibility tests. RFL with additives (a sulfur-based curative system normally used in making RFL fabric) passes the vulcanization test (the first prong) but fails the extensibility test (the second prong). To be considered a “synthetic rubber,” RFL must pass both prongs of the test. Because RFL, with or without additives, fails to pass the two-pronged test set forth in Note 4(a) to chapter 40, HTSUSA, it cannot be considered a “synthetic rubber.” Since RFL is not a “synthetic rubber,” fabric treated with RFL cannot be classified in heading 5906, HTSUSA, as a rubberized textile fabric.

Based on the above analysis, we presume that the classification of Style T0148 Dipped and T0359 Dipped in NY E87150 under subheading 5906.99.2500, as rubberized textile fabrics, was incorrect. This presumption is rebuttable if it can be demonstrated that the RFL dipping solution meets the recovery, elongation and vulcanization requirements set forth in Note 4(a). This finding is consistent with HQ 089454, dated October 3, 1991, wherein Customs found styrene-butadiene rubber (SBR) that coated nylon fabric was precluded from consideration as rubber for heading 5906 purposes. See also 088273, dated August 8, 1991.

The RFL dipped fabrics are also not classifiable in heading 5903, HTSUSA, which covers “textile fabrics impregnated, coated, covered or laminated with plastics,” because the RFL fabrics do not satisfy the requirements of Note 2(a)(1) to Chapter 59. Note 2(a)(1) specifies that “[t]extile fabrics in which the impregnation, coating or covering cannot be seen with the naked eye (usually chapters 50 to 55, 58 or 60)” are not classifiable in heading 5903. Note 2(a)(1) also provides that “no account should be taken of any resulting change of color.” In this case, the coating of RFL is not visible to the naked eye and the change of color cannot be taken into account.

Since the subject merchandise is not classifiable eo nomine as either rubberized textile fabric (heading 5906) or as plastic coated textile fabric (heading 5903), it falls to be classified at GRI 1 as a woven fabric.

Heading 5407, HTSUSA, provides for “Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404.” The EN to heading 5407 indicate that the heading covers “a very large variety of dress fabrics, linings, curtain materials, furnishing fabrics, tent fabrics, parachute fabrics, etc.” Thus, the provision is not limited by its terms to woven fabrics for any particular type of application. Accordingly, synthetic fabric treated with RFL is properly covered under heading 5407, HTSUSA.

The next consideration is whether or not the RFL fabric is “dyed” according to the terms of the HTSUSA. While CBP no longer has samples of the styles under consideration

All samples maintained by CBP at 6 World Trade Center in New York were destroyed in the events of September 11, 2001., we presume that the styles were likely tinted orange as a result of the RFL treatment process. Subheading Note 1(g) to Section XI of the HTSUSA defines “dyed woven fabric” as woven fabric which:

Is dyed a single uniform color other than white (unless the context otherwise requires) or has been treated with a colored finish other than white (unless the context otherwise requires), in the piece; or

Consists of colored yarn of a single uniform color.

The Dictionary of Fiber & Textile Technology (1990) defines “dyeing” as “[a] process of coloring fibers, yarns, or fabrics with either natural or synthetic dyes.” Textile “dyes” are defined as “[s]ubstances that add color to textiles. They are incorporated by chemical reaction, absorption, or dispersion.” Accordingly, with respect to dyeing, no particular intent or purpose is required. It is simply a treatment that colors a treated material.

In this situation, according to Note 1(g), the nylon fabric is treated with RFL solution which alters the fabric’s color to a uniform shade of light orange. Because it is colored a single uniform color other than white or treated with a color finish other than white, RFL treated fabric is considered “dyed.” This finding is consistent with NY 810505, dated May 19, 1995, wherein CBP found glass cord received its color from an RFL treatment. Likewise, in HQ 089454, dated October 3, 1991, CBP ruled that nylon fabric coated with SBR is classified in heading 5407.42.0060, HTSUSA, as dyed woven fabric of filament yarn.

HOLDING:

NY E87150, dated May 5, 2000, is hereby MODIFIED. In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Styles T0148 Dipped and T0359 Dipped are classified in subheading 5407.42.0030, HTSUSA, which provides for “Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: Other woven fabrics, containing 85 percent or more by weight of filaments of nylon or other polyamides: Dyed: Weighing not more than 170 g/m2.” The general one column rate of duty is 15.1 percent and the textile quota category is 620.

The designated textile and apparel category may be subdivided into parts. If so, the visa and quota 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 Textile Status Report for Absolute Quotas, previously available on the Customs Electronic Bulletin Board (CEBB), is available on the CBP website at www.cbp.gov.

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 CBP office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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