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HQ 967558




March 10, 2005

CLA-2 RR:CR:GC 967558 DSS

CATEGORY: CLASSIFICATION

TARIFF NO.: 4016.99.6050

Ms. Peggy Chaplin
Sandler, Travis & Rosenberg
111 South Calvert Street
Baltimore, MD 21202-3200

RE: Ruling request for rubber fuel cells

Dear Ms. Chaplin:

In your letter on behalf of Zodiac of North America, Inc. (Zodiac) to this Office, dated November 1, 2004, you inquire as to the classification of certain rubber fuel cells under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The classification of the fuel cells is set forth below. You have also submitted a sample of the fuel cell walls.

FACTS:

According to the information submitted, the instant fuel cells or fuel bladders are used on Zodiac boats to store fuel. Information in the file (Zodiac Product Description sheet) states, “The fuel bladder walls are constructed of layers of nitrile rubber reinforced and supported by nylon substrate through a process called calendaring, with bonding adhesives between the substrate and successive coatings.” The products are described as a 6-gallon (U.S.) fuel bladder (part no. N59375), an 18-gallon (U.S.) fuel bladder (part no. N59318), and an 18-gallon (U.S.) “soar” fuel bladder jerry can (part no. N59340). The fuel bladders are designed to carry various fuels, including diesel fuels.

The fuel bladder walls are composed of the following: an interior coating of nitrile butadiene rubber (NBR), weighing approximately 685 g/m2, and a polyvinyl fluor barrier (PVS), weighing approximately 18 g/m2; a nylon substrate with a fiber count of 940 decitex (12 x 12 cm2), weighing approximately 275 g/m2 (including adhesion agents); and an exterior coating consisting of a nitrile rubber/polyvinyl chloride (PVC) plastic compound weighing approximately 690 g/m2. The material weighs a total of 1650 g/m2. The importer further clarified that the composition of the exterior coating was 84 percent nitrile rubber and 16 percent PVC plastic.

Assembly of the fuel cells is achieved by hot vulcanization, in an autoclave around 150º C (302º F). According to the information in the file, fittings such as the fuel fill and cap, marine brass fuel sender, or stainless steel attachment points as well as webbing carrying handles are integrally bonded to the fuel cells during the construction process by the same autoclave vulcanization method.

ISSUE:

Whether the instant fuel cells are classified under heading 3926, HTSUS, as other articles of plastics, or heading 4016, HTSUS, as other articles of vulcanized rubber other than hard rubber.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative 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 GRIs may then be applied.

The HTSUSA provisions under consideration are as follows:

3926 Other articles of plastics . . . :
Other:
Other:
Other.

Other articles of vulcanized rubber other than hard rubber: Other:
Other:
Other:
Other:
Other:
Other.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUSA and are thus useful in ascertaining the classification of merchandise under the System. The Bureau of Customs and Border Protection (CBP) believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The instant fuel cells are used to carry fuel and are used with certain Zodiac boats, which are classified under heading 8903, HTSUS, as yachts and other vessels for pleasure or sports; row boats and canoes. However, heading 8903 makes no provision for parts, therefore, the instant fuel cells must be classified elsewhere.

You claim the instant fuel cells are classified under subheading 4016.99.6050, HTSUSA, at least in part based on New York Ruling Letter (NY) 877970, dated September 24, 1992. In NY 877970, CBP classified rubber fuel bladders for aircraft under subheading 4016.99.5050 as “other articles of vulcanized rubber, other,” which is now classified under subheading 4016.99.6050, HTSUSA. You claim the instant fuel cells are substantially similar to the fuel cells of NY 877970.

Classification of the instant fuel cells must take into account all three of its constituent layers, as described in the facts: the inner and outer layers of the rubber/ plastic combinations and the nylon substrate. Note 2(h) to Chapter 39, HTSUS, provides: “This chapter does not cover: [S]ynthetic rubber, as defined for the purposes of chapter 40, or articles thereof.“

Note 4 to Chapter 40, HTSUS, provides in pertinent part:

In note 1 to this chapter and in heading 4002, the expression “synthetic rubber” applies to:

(a) Unsaturated synthetic substances which can be irreversibly transformed by vulcanization with sulfur into non-thermoplastic substances, which at a temperature between 18º C and 29º C, will not break on being extended to three times their original length and will return, after being extended to twice their original length, within a period of 5 minutes, to a length not greater than 1- ½ times their original length. For the 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[.]

Based on the information provided, the inner and outer layers of this particular material are considered synthetic rubber of Chapter 40 for tariff purposes. Therefore, pursuant to Note 2(h) to Chapter 39, HTSUS, the instant fuel cells do not fall in Chapter 39.

Based on the description provided, the nylon substrate itself could be considered a man-made fabric of Chapter 59, so that the fuel cells might, at first glance, be considered an article of textiles of heading 6307, HTSUS. However, the ENs to Chapter 40 provide in relevant part that:

The classification of rubber and textile combinations is essentially governed by Note 1 (ij) to Section XI, Note 3 to Chapter 56 and Note 4 to Chapter 59 . . . The following products are covered by this Chapter [40]: . . .
(c) Textile fabrics (as defined in Note 1 to Chapter 59) impregnated, coated, covered or laminated with rubber, weighing more than 1,500 g/m2 and containing 50 % or less by weight of textile material; . . .

Note 1(ij) to Section XI, HTSUS, (which includes textiles of chapter 63) states that the section does not cover: “Woven . . . fabrics . . . impregnated, coated, covered or laminated with rubber, or articles thereof, of chapter 40.” Furthermore, Note 4 to Chapter 59, HTSUS, states, in relevant part:

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

(a) [T]extile fabrics impregnated, coated, covered or laminated with rubber: Weighing not more than 1,500 g/m2; or
Weighing more than 1,500 g/m2 and containing more than 50 percent by weight of textile material.

The instant fuel cells weigh in excess of 1,500 g/m2, and they contain less than 50 percent of textile material. Thus, according to Note 1 (ij) to Section XI and Note 4 to Chapter 59, HTSUS, the fuel cells are not considered articles of textiles of heading 6307, HTSUS, but instead are considered articles of synthetic fabric coated with rubber of chapter 40, HTSUS. Therefore, the instant fuel cells fall in Chapter 40, specifically under heading 4016, HTSUS, as other articles of vulcanized rubber other than hard rubber. NY 879723, dated October 30, 1992, classified a similar fuel cell under subheading 4016.99.5050 HTSUSA, (now 4016.99.6050, HTSUSA).

HOLDING:

Under the authority of GRI 1, the instant fuel cells are provided for in heading 4016, HTSUSA, as other articles of vulcanized rubber other than hard rubber. They are classified under subheading 4016.99.6050, HTSUSA, as “Other articles of vulcanized rubber other than hard rubber: Other: Other: Other: Other: Other: Other.” The 2005 column one, general rate of duty is 2.5 percent.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

Sincerely,

Myles B. Harmon, Director

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