CLA-2 CO:R:C:G 087565 CRS
Ms. Rebecca L. Nichols
Edward McNutt
P.O. Box 95003
Little Rock, AK 72295
RE: Nonwoven textile substrate coated on both sides with
elastomeric bitumen not classifiable in heading 6805; Note
1(c), Chapter 65.
Dear Ms. Nichols:
This is in reply to your letter dated July 11, 1990, on
behalf of your client, Siplast, concerning the classification of
an elastomeric bitumen membrane under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA). A sample was
submitted with your request.
FACTS:
The article in question, Teranap, is an elastomeric membrane
consisting of a single ply nonwoven polyester substrate coated on
both sides with elastomeric bitumen. One side is also coated
with a protective polypropylene film. Teranap 331 TP is 3 mm
thick and will be imported in rolls ranging in size from 20 m x 2
m to 80 m x 4 m. Teranap 431 TP is identical to Teranap 331 TP,
except that it is 4 mm thick.
Teranap, which is manufactured in France, is a waterproofing
material used to line reservoirs, dams, canals, recreational
lakes, irrigation ditches, tunnels, and ammunition dumps, as well
as to protect areas where water run-off is likely to contaminate
the water table.
ISSUE:
Whether a bituminised elastomeric membrane with a nonwoven
textile substrate is classifiable as an article of asphalt or as
a nonwoven.
LAW AND ANALYSIS:
Articles are classified under the HTSUSA in accordance with
the General Rules of Interpretation (GRIs). GRI 1 provides that
the classification of articles is determined according to the
terms of the headings and any relative section or chapter notes
and, provided the headings or notes do not otherwise require,
according to the remaining GRIs taken in order.
Heading 6807, HTSUSA, provides for articles of asphalt or
similar material (for example, petroleum bitumen or coal tar
pitch). Although this would seem to encompass the article in
question, Note 1(c), Chapter 68, HTSUSA, provides that the
Chapter does not cover "coated, impregnated or covered textile
fabric of chapter 56 or 59 (for example, fabric coated or covered
with mica powder, bituminized or asphalted fabric." Moreover,
this is reinforced by the Explanatory Notes, which although not
legally binding nevertheless constitute the official
interpretation of the Harmonized System at the international
level. EN 68.05, subparagraph (b), 903, restates the exclusion
and directs one in the alternative to either Chapter 56 or 59.
Since the textile substrate used in the manufacture of Teranap is
a nonwoven fabric of Chapter 56, it is therefore excluded from
heading 6807.
Heading 5603, HTSUSA, covers nonwovens, whether or not
impregnated, covered or laminated. The Explanatory Notes,
provide in pertinent part at EN 56.03, 559, that:
This heading also covers certain "roofing felts" in
which the textile fibres are agglomerated with tar or
similar substances, and certain products known as "bitumen
felts" obtained in the same way but incorporating a small
quantity of cork fragments.
The waterproofing material at issue is agglomerated with an
elastomeric bitumen (specifically, a styrene butadiene styrene
bitumen) and is similar to roofing or bitumen felts and, as such,
is classifiable in heading 5603, HTSUSA.
HOLDING:
Teranap 331 and 431 are classifiable in subheading
5603.00.9010, HTSUSA, under the provision for nonwovens, whether
or not impregnated, coated, covered or laminated: other: other:
impregnated, coated or covered with material other than or in
addition to rubber, plastics, wood pulp or glass fibers;
imitation suede. They are dutiable at the rate of 12.5 percent
ad valorem and subject to textile category 223.
The designated textile and apparel category may be
subdivided into parts. If so, 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 that you check, close to the time of shipment, the Status
Report on Current Import Quotas (Restraint Levels), an internal
issuance of the U.S. Customs Service, which is available for
inspection at your local Customs office.
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
Customs office prior to importation of this merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division