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HQ W968436




January 11, 2007

RR:CTF:TCM W968436 tmf

CATEGORY: CLASSIFICATION

TARIFF NO.: 5407.10.0090

Lindsay B. Meyer, Esq.
Daniel J. Gerkin, Esq.
Venable, LLP
575 7th Street NW
Washington, D.C. 20004

RE: Classification of Twill Woven Fabric Constructed with Resorcinol Formaldehyde Latex Fabric for Use in the Manufacture of Conveyor Belts

Dear Ms. Meyer and Mr. Gerkin:

This letter concerns your request to the National Commodity Specialist Division on behalf of your client, Goodyear Tire and Rubber Company ("Goodyear") for a prospective tariff classification determination under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of certain twill nylon woven fabric dipped in resorcinol formaldehyde latex for use in the manufacturing of conveyor belts.

Your request along with two samples was sent to this office for our reply.

FACTS:

The merchandise under consideration is M439, a twill woven nylon fabric that is dipped in resorcinol formaldehyde latex (RFL). You indicate that it will be imported from China to be further manufactured for ultimate use on certain conveyor belting machines.

The product is composed of 100 percent filament nylon 66 that is manufactured using 1680 denier high tenacity filament nylon yarns in the warp and 1260 denier high tenacity filament nylon yarns in the filling. You state that the yarns have a tenacity of 81.2 centinewtons/tex and the nominal weight of the M439 fabric is 34.5 ounces per square yard (or 1170 grams per square meter), and the nominal fabric gauge is 0.066 inches or 1.68 millimeters. You state that your client intends to import the M439 fabric in the width range of 49.10 to 75 inches. You also provided a specification sheet that we reviewed.

With respect to the fabric's manufacturing process, you indicate that the M439 fabric will be twice dipped in a water-based resorcinol formaldehyde latex (“RFL”) emulsion that combines resorcinol formaldehyde resin with butadiene/styrene/vinylpyridine rubber. Based on this formulation, you state the fabric is coated with an RFL adhesive that measures approximately 10 microns and accounts for between 8 and 10 percent of the fabric weight, which is the source of the characteristic brown-orange fabric color. You state that the coating functions to improve the fabric’s adhesion to rubber. After importation, your client will bond the subject fabric with rubber to produce conveyor belting for various use applications. You also indicated in your submission that the subject fabric is not considered rubberized within the meaning of Note 4(a) to Chapter 40, HTSUSA.

You assert that since the subject product’s coating is visible with the RFL adhesive, it meets Notes 2 and 5 to Chapter 59, HTSUSA, and is classifiable in subheading 5903.90.2500, HTSUSA, or in the alternative, subheading 5907.00.6000, HTSUSA.

ISSUE:

What is the classification of the subject fabric 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 5903, HTSUSA, provides for "textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902. EN 59.03 states, in pertinent part:

This heading also covers dipped fabrics (other than those of heading 59.02), impregnated to improve their adhesion to rubber, and textile fabrics which are splattered by spraying with visible particles of thermoplastic material and are capable of providing a bond to other fabrics or materials on the application of heat and pressure.

As indicated in the "Facts" section of this letter, you state that the subject fabric is not rubber within the meaning of Note 4(a) to Chapter 40, HTSUSA.

Furthermore: CBP has determined that resorcinol formaldehyde latex (RFL) is not a rubber. Rather, 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. For further discussion, see HQ 966535, dated November 6, 2003, which determined that RFL dipped fabrics were not classifiable in heading 5903, HTSUSA, since they do not satisfy the requirements of Note 2(a)(1) to Chapter 59. You assert that the subject fabric is classifiable in subheading 5903.90.2500, HTSUSA, which provides for "Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: Other: Of man-made fibers: Other: Other", dutiable at 7.5 percent ad valorem. In the alternative, you suggest classification in subheading 5907.00.6000, HTSUSA, which provides for "Textile fabrics otherwise impregnated, coated or covered; painted canvas being theatrical scenery, studio back-cloths or the like: Other: Of man-made fibers," dutiable at a Free rate.

We agree that the subject fabric is dipped with RFL which results in a change in color to the original greige fabric. The issue is whether the coating is visible to the naked eye. We refer to Note 2(a)(1) to Chapter 59, HTSUSA, which states 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 RFL is not visible to the naked eye and the change of color cannot be taken into account.

Although you refer to the effects of the plastic upon the fabric, such as the fabric stiffness and fabric sheen, none of these are considered to be factors in evaluating the coating’s visibility. You also referred to Verosol USA, Inc. v. United States, 941 F. Supp 139 (Ct. Int’l Trade, 1996), in which the Court of International Trade opined that the visible sheen imparted by the aluminum fabric coating The fabric was described as “woven polyester that has undergone a vacuum vapor-deposition process that coats one side of the fabric with aluminum. The coated side of the fabric is visibly different from the side which is not coated. The aluminum gives the fabric a metallic sheen or luster and a silvery color.” Id. at 140. along with the obscuring of individual fabric fibers and the enhancement of the fabric’s weave was enough to render the coating visible to the naked eye for purposes of Chapter 59. Id. at 141. However, the Court in Verosol indicated that sheen alone is not enough to determine visible coating. Id. at 142. In this case, the dipped M439 fabric , lacks shine or sheen, and has a dull or matte-like finish. Moreover, the greige is different: it has shine or sheen and a silvery color. However, with the dipped M439, there does not appear to be any emphasis of the fabric’s texture. Note: In Foxfire, Inc. v. United States, 941 F. Supp. 1258, the Court of International Trade determined certain oilskin garments’ waxy appearance and sheen were visible attributes of impregnation and not effects of the impregnation. The Court concluded that classification was appropriate in heading 6210, HTSUS since the term “oilskins” is expressly provided within EN 62.10. Thus, the M439 is distinguishable from the fabrics at issue in Verosol and Foxfire since the M439 has only a change in sheen (from shiny to dull), which alone is insufficient to establish a visible coating.

CBP has issued rulings on substantially similar woven fabrics coated with RFL. Specifically, we refer you to Headquarters Ruling Letter (HQ) 966518 dated November 6, 2003 (which classified woven cotton fabric treated with styrene-butadiene rubber in subheading 5208.32.3040, HTUSUS); and four Headquarters rulings which classified various types of fabrics in subheading 5407.42.0030. (HQ 966519, dated November 6, 1993; HQ 966534, dated November 6, 1993; HQ 966535, November 6, 1993, and HQ 966536, dated November 6, 1993.) In each ruling, CBP revoked prior rulings and ruled that the RFL coating was not visible to the naked eye and that the change of color could not be a factor. We find this to be the case with the instant M439. As such, it is not classifiable eo nomine as a plastic coated textile fabric of heading 5903.

Further, it is precluded from heading 5907, which provides for textile fabrics impregnated with certain substances other than plastics or rubber, on two counts: first, the coating is not visible to the naked eye; and second, there is no evidence from you that the RFL coating formulation includes any of the exemplars outlined in EN 59.07 (e.g., coated with tar, bitumen, wax, natural resin and camphor, etc.). Therefore, as it is precluded from Chapter 59, it is classifiable in Chapters 50 to 55, 58 or 60. See EN 59.03.

In this case, we find heading 5407, HTSUSA, which provides for "Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404,” to be appropriate. All of the yarns which form M439 have a total tenacity measurement of 81.2 centinewtons/tex, which exceeds the requirement of 60 cN/tex of Note 6 to Section XI, HTSUS. Specifically, the fabric is classifiable in subheading 5407.10.0090, which provides, eo nomine for “woven fabrics obtained from high tenacity yarn of nylon or other polyamides or of polyestersOther.” For other instances where fabric dipped in RFL have been classified in subheading 5407.10.0090, see the previously referenced ruling letters, as well as NY K89807, dated October 26, 2004, and K87202, dated July 16, 2004.

HOLDING:

M439, a twill woven nylon fabric that is dipped in resorcinol formaldehyde latex (RFL) is classified in subheading 5407.10.0090, HTSUSA, which provides for “woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: woven fabrics obtained from high tenacity yarn of nylon or other polyamides or of polyesters, other.” The 2007 applicable column one general rate of duty is 13.6 ad valorem and the textile quota category number is 620.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the world wide web at www.usitc.gov.

With the exception of certain products of China, quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (WTO) member countries. The textile category number above applies to merchandise produced in non-WTO member-countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the "Textile Status Report for Absolute Quotas" which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer you to the web site of the Office of Textiles and Apparel of the Department of Commerce at otexa.ita.doc.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 the local CPB office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.

Sincerely,

Gail A. Hamill, Chief
Tariff Classification and Marking Branch

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