CLA-2 RR:CR:TE
Ms. Donna Troiano, Traffic Manager
Tejin Shoji (Amercia), Inc.
1412 Broadway, 21st Floor
New York, NY 10018
RE: Revocation of Headquarters Ruling Letter 087266, dated August 16, 1990; Classification of Cotton Plain Woven Fabric Coated with Solution Composed of Resorcin, Formalin and Styrene-Butadiene Rubber
Dear Ms. Troiano:
This letter concerns Headquarters Ruling Letter (HQ) 087266, issued to you on August 16, 1990, regarding the tariff classification of fabric treated with a solution containing styrene-butadiene rubber (SBR) 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 the four samples considered was incorrect. For the reasons that follow, this ruling revokes HQ 087266.
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 revocation of HQ 087266 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 merchandise under consideration consists of four styles of plain cotton woven fabrics, identified as style numbers D2W, D3W, D5W and D6W. In Headquarters Ruling Letter 087266, we described the merchandise as follows.
The merchandise in question consists of four plain woven cotton rubberized fabrics (style nos. D2W, D3W, D5W and D6W). The fabrics are made in and imported from Singapore and are used as carcass materials in the manufacture of machine belting for automotive and industrial equipment.
Style D2W weighs 6.4 ounces per square yard; style D3W, 7.8 ounces per square yard; style D5W, 10.9 ounces per square yard; and style D6W, 16.4 ounces per square yard. All four fabrics are unbleached.
The fabrics have been dipped in a rubber solution containing resorcin, formalin, styrene-butadiene rubber (SBR) and water. The purpose of the rubber treatment is to facilitate the adhesion of the fabrics, which ultimately form the top and bottom layers of finished belting, to other materials used in the manufacture of belting such as cord fabric and rubber sheeting. The dipping solution is 5.68 percent rubber. As a percentage of total fabric weight, style D2W is 3.36 percent SBR, style D3W is 2.58 percent, style D5W is 2.33 percent and style D6W, 2.43 percent.
A Customs laboratory report on the fabrics states that the coatings contain both a synthetic rubber (SBR type) and a synthetic polymer.
In HQ 087266, we classified the four fabrics considered under subheading 5906.99.1000, HTSUSA, which provides for “rubberized textile fabrics, other than those of heading 5902, other, other, of cotton, other.”
In your letter, dated August 3, 1990, you provided the following information regarding the composition of the dipping solution:
Dipping Solution
Resorcinol : 2.04 %
Formalin : 1.36 %
Latex (SBR Type) : 12.92 %
Water : 83.62 %
Neocoal SW : 0.06 %
Total 100%
Based on visual examination of the samples and a review of the ingredients used to make the dipping solution, the solution used to treat the four fabrics is effectively a variety of resorcinol formaldehyde latex (RFL).
ISSUE:
What is the proper classification of the treated fabrics 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.
In your original submission, you described the solution used to treat the fabrics as containing resorcinol, formalin and SBR latex. This formulation produces a resorcinol formaldehyde latex (RFL), which 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” has 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 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. Styrene butadiene rubber (SBR) is a synthetic latex made by emulsion polymerization from styrene-butadiene. The Columbia Encyclopedia, Sixth Edition (2001). The typical SBR polymer consists of 23 percent styrene and 77 percent butadiene by weight. Kirk-Othmer, Encyclopedia of Chemical Technology (3rd ed.), 612. Accordingly, a large amount of butadiene, which gives the copolymer its rubber characteristics, and the absence of styrene chains, which are plastic in character, is indicative of SBR. Thus, a true SBR would readily satisfy the requirements of note 4(a). In HQ 088273, dated August 8, 1991, CBP found that upholstery fabrics coated with a 48 percent styrene and 52 percent butadiene block polymer, described as an SBR, were not properly classified in heading 5906, as a rubberized textile fabric.
During our review of HQ 087266, the Customs Laboratory determined that the SBR present in the solution consisted approximately of 60 percent styrene (plastic-like qualities) and 40 percent butadiene (rubber-like qualities). Prior to the ruling’s issuance in 1990, CBP performed laboratory tests on the treated fabric samples without separately testing the RFL solution prior to it 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 an SBR type of rubber and a synthetic polymer. However, the mere presence of an SBR in the treated fabric does not signify that the solution used to treat the fabric is actually a rubber for tariff classification purposes. For 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, we presume that manufacturers use 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 extensibility 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 the fabrics in HQ 087266 under subheading 5906.99.1000, as rubberized textile fabrics, was incorrect. This presumption is rebuttable if it can be demonstrated that the solution does indeed meet 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.
Neither are the treated fabrics classifiable in heading 5903, HTSUSA, which covers “textile fabrics impregnated, coated, covered or laminated with plastics,” because the 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 5208, HTSUSA, provides for “Woven fabrics of cotton, containing 85 percent or more by weight of cotton, weighing not more than 200 g/m2.” The EN to heading 5208 provide that “[c]otton fabrics are produced in a great variety and are used according to their characteristics, for making clothing, household linen, bedspreads, curtains, other furnishing articles, etc.” Thus, the provision is not limited by its terms to woven fabrics for any particular type of application. Accordingly, cotton fabric treated with RFL is properly covered under heading 5208, HTSUSA.
The next consideration is whether or not the RFL fabric is “dyed” according to the terms of the HTSUSA. Based on physical examination of the samples under consideration, the styles are 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 cotton fabric is treated with RFL solution which alters the color of the fabrics to a uniform shade of light orange. Because they are colored a single uniform color other than white or treated with a color finish other than white, the RFL treated fabrics are 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:
HQ 087266, dated August 16, 1990, is hereby REVOKED. In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
The fabrics identified by style numbers D2W, D3W, D5W and D6W are classified in subheading 5208.32.3040, HTSUSA, which provides for “Woven fabrics of cotton, containing 85 percent or more by weight of cotton, weighing not more than 200 g/m2: Dyed: Plain weave, weighing not more than 100 g/m2: Other: Of number 42 or lower number, sheeting.” The general one column rate of duty is 7.3 percent and the textile quota category 313.
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