CLA-2 CO:R:C:T 089454 KWM
Mr. Robert W. Murphy
Regional Director, Commercial Operations
United States Customs Service
55 East Monroe Street
Chicago, Illinois 60603-5790
RE: Application for Further Review of Protest Number
3801-9-003040; Woven fabric; Not coated or covered; Not
rubberized; SBR; Styrene: Butadiene; Latex; Rubber.
Dear Mr. Murphy:
This is in response to the application for further review of
your decision in protest number 3801-9-003040, regarding
styrene-butadiene rubber "coated" nylon fabric. After
considering the information presented, and examining the sample
provided, we find that the protest decision should be affirmed.
The merchandise at issue is referred to by the protestant by
the trade name "Ballistic" fabric. Ballistic fabric is composed
of "100 percent nylon, containing man-made Number 1330 DTEX
Nylon" to which has been applied a latex "coating" or "backing."
The latex is a styrene-butadiene rubber (SBR), and it is applied
only to one side of the woven nylon fabric. According to the
protestant, the fabric will enter the United States in 540 inch
wide rolls. The weight per lineal yard is 16.75 ounces
unfinished, and 18.0 ounces per lineal yard finished (1.25 ounces
of SBR per lineal yard). Therefore, the percentages by weight of
textile to rubber are approximately 93 percent textile and 7
percent rubber. Laboratory analysis confirms this breakdown (92
percent textile and 8 percent rubber).
At the time of entry, the protestant classified the
merchandise as a textile fabric coated with plastics under
heading 5903, HTSUSA. The port of Detroit liquidated the goods
under heading 5516, HTSUSA, as a woven fabric of artificial
staple fibers. The protestant now advocates re-liquidating the
goods under heading 5906, HTSUSA, as rubberized textile fabrics.
Is the merchandise classified as plastic coated textile
(heading 5903, HTSUSA), as rubberized textile fabric (heading
5906, HTSUSA) or as a woven fabric of artificial staple fibers
(heading 5516, HTSUSA)?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA) is made in accordance with the
General Rules of Interpretation (GRI's). The systematic detail
of the harmonized system is such that virtually all goods are
classified by application of GRI 1, that is, according to the
terms of the headings of the tariff schedule and any relevant
Section or Chapter Notes.
Internal Advice request 55/90 was issued on August 8, 1991, to
the District Director in Buffalo regarding upholstery fabrics
coated with SBR and imported by the protestant. The SBR compound
used to coat the fabric at issue in I/A 55/90 was 48 percent
styrene and 52 percent butadiene, and was found to be a plastic,
rather than rubber material:
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 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 40.
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
Emphasis added. While the protestant here has not provided a
breakdown of the styrene and butadiene components of the SBR
coating used here, we believe that it is similar in composition
to that used by the protestant for the fabric in I/A 55/90. Both
the absence of a vulcanization process and a styrene content
greater than 40 percent will serve to exclude the SBR from
consideration as a "rubber" for heading 5906 purposes.
Protestant here appears to argue that the mere application of
rubber to a fabric renders it "rubberized" for tariff purposes.
We do not agree. While the legal notes and tariff terms do not
require that a minimum amount of rubber be present for heading
5906, HTSUSA, purposes, the terms "coating" must be applied in a
consistent manner throughout the nomenclature. Customs has held
that a "coating" generally implies that a separate,
distinguishable substance has been combined with another
material. In this case, we find that such elusive quantities of
rubber, whose presence cannot be detected by standard laboratory
analysis, should be treated as non-coated for tariff purposes.
The instant material is not a rubberized fabric of heading 5906,
Plastic coated textiles
If the SBR material is not a rubber, it is considered a
plastics material. Heading 5903, HTSUSA, provides for textile
fabrics 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. The
styrene-butadiene coating on the fabric at issue does not obscure
the weave or otherwise affect the surface characteristics of the
nylon material. The rubber substance is visible neither to the
naked eye nor under magnification (10x). The instant material is
not a coated fabric of heading 5903, HTSUSA.
Because the merchandise is not classifiable eo nomine as
either rubberized textile (heading 5906) or as plastic coated
textile (heading 5903), it must be classified as a composite
material by determining essential character (GRI 3). Two
component materials are present here: woven textile fabric and
SBR. The predominant component is clearly the nylon fabric,
which appears to be dyed and composed of nylon filament yarn.
The material is therefore classified as a woven fabric of
synthetic filament yarn, specifically nylon.
The merchandise at issue, a woven nylon textile fabric
combined with styrene-butadiene rubber is not coated for the
purposes of either heading 5906 or 5903, HTSUSA. It is
classified according to its' essential character of woven fabric,
of nylon filament yarn, in subheading 5407.42.0060, HTSUSA. The
applicable rate of duty is 17 percent ad valorem. Textile visa
category 620 is associated with this classification.
The designated textile and apparel category may be subdivided
into parts. If so, the visa and quota category 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 Status
Report on Current Import Quotas (Restraint Levels), an issuance
of the U.S. Customs Service, which is updated weekly and is
available 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 the importation of this merchandise to
determine the current status of any import restraints or
A copy of this ruling should be attached to the notice of
ruling (CF 19) to be sent to the protestant.
John A. Durant, Director
Commercial Rulings Division