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