CLA-2 CO:R:C:T 088273 CRS
5512.19.0090; 5512.99.0035; 5903.90.3010
District Director
U.S. Customs Service
111 West Huron Street
Buffalo, NY 14202
RE: Internal Advice request 55/90; woven fabrics coated with 48
percent styrene, 52 percent butadiene, are not rubberized fabrics
of heading 5906; coatings with styrene content greater than 40
percent are presumed to be plastics.
Dear Sir:
This is in reply to your memorandum dated August 8, 1990, in
which you forwarded an internal advice request (55/90), submitted
by Tandem Fabrics, Inc., of Cambridge, Ontario, concerning the
classification of upholstery fabrics coated with styrene-
butadiene. Sample fabric swatches were attached to the original
request. Dumbbell specimens of the liquid polymer coating were
subsequently obtained from Tandem Fabrics.
FACTS:
The merchandise at issue consists of two sets of upholstery
fabric manufactured in and imported from Canada. The first set
(A) consists of twenty named fabric swatches. Each named fabric
pattern may be produced in a variety of colors. The named fabric
patterns are as follows: Argus; Ballet; Benton; Bolton; Brier;
Broadway; Calibre; Canton; Chevron; Dana; Duet; Harmony Twill;
Laser; Linton; Ming; Ryeland; Shinto; Sierra; Taurus; and Yale.
All of the fabrics in set A have been coated with VULTEX 2-
05216, a styrene butadiene block copolymer referred to by Tandem
in their letter of July 18th as styrene butadiene rubber (SBR).
The fabrics range in total weight from 222 g/m to 561 g/m, of
which styrene butadiene represents from 34 g/m to 47 g/m. The
coating consists of 48 percent styrene, 52 percent butadiene, and
comprises from 8.3 percent to 18.5 percent of the total fabric
weight. The majority of the set A fabrics are composed entirely
of man-made fibers (nylon, polyester or olefin) either of a
single fiber or in various blends. Two fabrics are blends of
polyester and wool where polyester is the predominant fabric by
weight. One fabric, Canton, is a blend of 50 percent wool, 40
percent nylon and 10 percent silk. Five of the fabrics are
blends of filament and staple fibers; the balance consist either
of 100 percent staple yarns or 100 percent filament yarns.
The second set of upholstery fabrics (B) consists of four
named swatches, styles Sussex, Estrella, Osaka and Tempest. All
are woven upholstery fabrics. Sussex is 100 percent wool and
coated on one surface with a rubber compound. Estrella is made
from 100 percent textured polyester filament yarn while Osaka and
Tempest contain filament yarn in the warp and staple fiber in the
weft. Styles Estrella, Osaka and Tempest are uncoated.
ISSUE:
Whether a 48 percent styrene, 52 percent butadiene copolymer
is rubber such that fabrics coated therewith are classifiable as
rubberized fabrics of heading 5906.
If not rubberized, whether the fabrics are classifiable as
fabrics coated with plastics of heading 5903.
LAW AND ANALYSIS:
Rubberized Fabrics
Heading 5906, HTSUSA, provides for rubberized textile
fabrics, other than those of heading 5902. Note 4, Chapter 59,
HTSUSA, defines the expression "rubberized textile fabrics" as
textile fabrics impregnated, coated, covered or laminated with
rubber. The expression "rubber" as used in the Nomenclature
includes synthetic rubber. Note 1, Chapter 40, HTSUSA.
Note 4, Chapter 40, HTSUSA, defines "synthetic rubber" in
pertinent part as follows:
(a) Unsaturated synthetic substances which can be
irreversibly transformed by vulcanisation with
sulphur into non-thermoplastic substances which,
at a temperature between 18C and 29C, 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 five minutes, to a length not greater
than 1-1/2 times their original length....
In order for an unsaturated synthetic substance to be classified
as synthetic rubber (heading 4002, HTSUSA), it must comply with
the vulcanisation elongation and recovery criteria specified in
Note 4, supra. Harmonized Commodity Description and Coding
System, Explanatory Notes, EN 40.02, 586.
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 percent 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.
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.
Plastic Coated Fabrics
Since the block copolymer used to coat the instant fabrics
does not meet the vulcanization requirement it is therefore not
rubber. Instead it is a plastics material. Notes 1, 4, Chapter
39 (plastics and articles thereof), HTSUSA.
Heading 5903, HTSUSA, provides for textile fabrics (other
tire cord fabric of heading 5902) 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. With the exception of the set B fabric
"Sussex," the styrene-butadiene coating has not obscured the
weave or otherwise affected the surface characteristics of any of
the fabrics at issue and thus Customs does not consider the
fabrics to be coated for tariff purposes. The coating on the
Sussex fabric (set B) can be seen with the naked eye, however,
and consequently, the fabric is classifiable in heading 5903.
Since the set A fabrics are neither rubberized nor coated
for tariff purposes, they are classifiable according to their
constituent material. Similarly, three of the set B fabrics,
Estrella, Osaka and Tempest, are neither rubberized nor coated
for tariff purposes and thus are also classifiable according to
their constituent material.
Set A Fabrics
The set A fabrics include fabrics made from 100 percent man-
made filament yarns, 100 percent man-made staple fibers, blends
of man-made filament yarns and staple fibers, and blends of man-
made and natural fibers. All exceed 170 g/m in weight. The man-
made filaments and fibers present in the set A fabrics -- nylon,
polyester and olefin -- are synthetic fibers as defined by Note
1, Chapter 54, HTSUSA.
Woven fabrics of synthetic staple fibers containing 85
percent or more by weight of synthetic staple fibers are provided
for in heading 5512, HTSUSA. Seven set A fabrics -- Argus,
Benton, Bolton, Brier, Linton, Taurus and Yale -- consist of 100
percent synthetic staple fibers and are classifiable accordingly.
Woven fabrics of synthetic filament yarn are provided for in
heading 5407, HTSUSA. Four set A fabrics -- Calibre, Chevron,
Laser and Sierra -- consist of 100 percent synthetic filaments
and are therefore classifiable in heading 5407.
Five set A fabrics -- Ballet, Broadway, Harmony Twill, Ming
and Shinto -- are made from 100 percent synthetic material but
consist of, e.g., filaments in the warp and staple fibers in the
weft. Note 2, Section XI, HTSUSA, provides in pertinent part
that:
(A) Goods classifiable in chapters 50 to 55 ... and of a
mixture of two or more textile materials are to be
classified as if consisting wholly of that one textile
material which predominates by weight over each other
single textile material.
However, as the fabrics consist in equal proportion of staple
fibers and filaments, neither predominates by weight. As a
result, they cannot be classified according to Note 2, Section
XI, HTSUSA. In such a case, General Rule of Interpretation (GRI)
3(b) requires that they be classified as if they consisted of the
material that gives them their essential character. Failing
that, GRI 3(c) directs that they be classified under the heading
which occurs last in numerical order among those which equally
merit consideration. Neither the material of the warp nor that
of the weft imparts the fabrics' essential character.
Consequently, the above fabrics are classifiable pursuant to GRI
3(c), under the provision for woven fabrics of staple fibers of
heading 5512.
Fabrics Dana (75 percent polyester, 25 percent wool), Duet
(85 percent nylon, 15 percent rayon) and Ryeland (70 percent
polyester, 30 percent wool) are blends of synthetic staple fibers
and wool or synthetic staple fibers and artificial staple fibers.
Under Note 2, Section XI, HTSUSA, they are classifiable as woven
fabrics of synthetic staple fibers of heading 5512.
The remaining set A fabric, Canton, consists of 50 percent
(carded) wool, 40 percent nylon and 10 percent silk. Pursuant to
Note 2, Section XI, HTSUSA, it is classifiable in heading 5111,
HTSUSA, under the provision for woven fabrics of carded wool.
Set B Fabrics
There are four set B fabrics. Style Sussex is classifiable
in heading 5903 as noted above. The remaining set B fabrics are
Estrella, Osaka and Tempest. Estrella is a dyed fabric weighing
269 g/m, and is made from 100 percent polyester filaments, a
synthetic fiber as defined by Note 1, Chapter 54, HTSUSA, and is
classifiable in heading 5407, HTSUSA, as a woven fabrics of
synthetic filament yarn.
Heading 5515, HTSUSA, provides for other woven fabrics of
synthetic staple fibers. Both Osaka and Tempest are made of
polyester staple fibers in combination with polyester filaments.
The total fabric weight of Osaka is 313 g/m, of which 188 g/m or
61.1 percent represents staple fibers. The total weight of
Tempest is 375 g/m, of which 246 g/m or 65.6 percent represents
staple fibers. Since staple fibers predominate in the Osaka and
Tempest fabrics, they are classifiable in heading 5515, HTSUSA.
U.S. - Canada FTA
Products that qualify as goods originating in the territory
of Canada under General Note 3(c)(vii), HTSUSA, are eligible for
the reduced rate of duty provided for in subheading 9905.00.30,
Subchapter V, Chapter 99, HTSUSA. The instant fabrics are wholly
produced in Canada from Canadian or American yarn and therefore
qualify as goods originating in the territory of Canada pursuant
to General Note 3(c)(vii).
HOLDING:
Set A
Fabrics Calibre, Chevron, Laser and Sierra are classifiable
in subheading 5407.52.2060, HTSUSA, under the provision for woven
fabrics of synthetic filament yarns...; other woven fabrics,
containing 85 percent or more by weight of synthetic filaments;
dyed; weighing more than 170 g/m. The column 1 general rate of
duty for fabrics classifiable in this subheading is 17 percent ad
valorem.
Fabrics Ballet, Brier, Broadway, Shinto and Yale are
classifiable in subheading 5512.19.0090, HTSUSA, under the
provision for woven fabrics of synthetic staple fibers...;
containing 85 percent or more by weight of polyester staple
fibers; other; other; duck. The column 1 general rate of duty
for fabrics classifiable in this subheading is 17 percent ad
valorem.
Fabrics Argus, Benton, Bolton, Dana, Duet, Harmony Twill,
Linton, Ming, Ryeland and Taurus are classifiable in subheading
5512.99.0035, HTSUSA, under the provision for woven fabrics of
synthetic staple fibers...; other; other; duck. The column 1
rate of duty for fabrics classifiable in this subheading is 17
percent ad valorem.
Canton is classifiable in subheading 5111.30.0500, HTSUSA,
under the provision for woven fabrics of carded wool or of carded
fine animal hair; other, mixed mainly or solely with man-made
staple fibers; tapestry fabrics and upholstery fabrics of a
weight exceeding 300 g/m. The column 1 general rate of duty for
fabrics classifiable in this subheading is 7 percent ad valorem.
As goods originating in the territory of Canada under
General Note 3(c)(vii), HTSUSA, all of the set A upholstery
fabrics are eligible for the reduced rate of duty provided for in
subheading 9905.00.30, HTSUSA. Accordingly, the set A fabrics
are dutiable at 40 percent of the column 1 general rate of duty
applicable to the above subheadings.
Set B
Sussex is classifiable in subheading 5903.90.3010, HTSUSA,
under the provision for textile fabrics, impregnated, coated,
covered or laminated with plastics...; other; other; of wool or
fine animal hair. The column 1 general rate of duty for fabrics
classifiable in this subheading is 5.3 percent ad valorem.
Estrella is classifiable in subheading 5407.52.2060, HTSUSA,
under the provision for woven fabrics of synthetic filament
yarn...; other woven fabrics, containing 85 percent or more by
weight of textured polyester filaments; dyed; other; weighing
more than 170 g/m. The column 1 general rate of duty for fabrics
classifiable in this subheading is 17 percent ad valorem.
Osaka and Tempest are classifiable in subheading
5515.12.0090, HTSUSA, under the provision for other woven fabrics
of synthetic staple fibers; of polyester staple fibers; mixed
mainly or solely with man-made filaments; other. The column 1
general rate of duty for fabrics classifiable in this subheading
is 17 percent ad valorem.
As goods originating in the territory of Canada under
General Note 3(c)(vii), HTSUSA, all of the set B upholstery
fabrics are eligible for the reduced rate of duty provided for in
subheading 9905.00.30, Subchapter V, Chapter 99, HTSUSA.
Accordingly, the set B fabrics are dutiable at 40 percent of the
column 1 general rate applicable to the above subheadings.
Sincerely,
John Durant, Director
Commercial Rulings Division