CLA-2 RR:CR:GC 961703 JGB
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