CLA-2 CO:R:I 084970 GJA; 083934
Mr. David Serko, Esquire
Serko and Simon
One World Trade Center, Suite 3371
New York, New York 10048
Re: Tariff classification of compressed gasket material,
Durlon 8500 and Durlon 8600
Dear Mr. Serko:
This letter is in response to your request for
reconsideration of 083934, dated June 13, 1989, regarding
classification of two compressed gasket materials, Durlon 8500
and Durlon 8600.
FACTS:
The manufacturing process as described in ruling 083934
pertains to this ruling as well. Rubber sheeting or slabs (NBR
acrylonitrile-butadiene and SBR styrene-butadiene compounds) are
treated with a solvent until the rubber becomes a pasty mush.
This mush is mixed with rubber curing agents. In a separate dry
mix operation, Kevlar aramid fibers of one millimeter in length
are combined with mineral fillers. To this dry mixture is added
the pasty rubber mush. The combined mixture is processed for
thirty to sixty minutes into a crumbly dough and more solvent is
added to maintain pliancy.
The dough is fed into the hopper of a two-roll rubber sheet
manufacturing machine, consisting of one hot and one cold roll.
The hot roll is the take-up roll and the cold roll serves to
compress the dough evenly across the hot roller as both rolls
rotate. The rollers are set one one-thousandth of an inch apart
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and small amounts of the dough are added continuously to the
hopper of the sheeter. At the end of one revolution, the
rollers are set another thousandth of an inch apart and the
process is repeated until the desired thickness is reached. The
sheet is then removed from the hot roller.
In terms of content, the NBR gasket material contains 65%
mineral filler, 18% aramid fiber, 15% rubber and 2% chemicals.
The SBR gasket material contains 64% mineral filler, 20% aramid
fiber, 15% rubber, and 1% chemicals. In ruling 083934, we held
that those materials were classifiable in 5603.00.9040,
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), as a nonwoven textile, whether or not impregnated,
coated, covered or laminated, other, other, other, with a duty
rate of 11.2 percent ad valorem, and textile category 223.
ISSUE:
Are these gasket materials properly classifiable, as sheets
of vulcanized rubber in heading 4008, HTSUSA, as nonwoven textile
material in heading 5603, HTSUSA, or as an article of other
mineral substances, not elsewhere specified or included in
heading 6815, HTSUSA?
LAW AND ANALYSIS:
The instant merchandise is an article of a mixture of
synthetic rubber, textile fibers, and mineral fillers. At
General Rule of Interpretation (GRI) 1, HTSUSA, classification is
determined according to the terms of the headings and the
relative legal notes. Accordingly, the terms of the headings
suggest that the merchandise is described in part by three
headings. Heading 4008 covers plates, sheets, strip...of
vulcanized rubber other than hard rubber. Heading 5603 covers
nonwovens, whether or not impregnated, coated, covered or
laminated. Heading 6815 covers...articles of other mineral
substances, not elsewhere specified or included.
Chapter 40, note 1 defines rubber to include synthetic
rubber. Note 2(a) states that chapter 40 does not cover goods of
Section XI (textiles and textile articles). Note 4(a) defines
synthetic rubber according to its properties. According to your
calculations, your products meet the requirements of note 4(a).
We note that the base polymers of which your products are made,
styrene-butadiene (SBR) and acrylonitrile-butadiene (NBR) are
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enumerated as synthetic rubbers within heading 4002. According
to your initial submission, during the production process of your
gasket materials sulphur is added to vulcanize, or cure, the
synthetic rubber. Thus, the synthetic rubber constituent from
which your products are made meet the definition for vulcanized
rubber as expressed in the Explanatory Notes at 578.
You claim that your products are classifiable in heading
4008, plates, sheets, strip, rods and profile shapes, of
vulcanized rubber other than hard rubber. Chapter 40, note 9
limits the expressions plates, sheets and strip, for purposes of,
among others, heading 4008, to those products and block..."uncut
or simply cut to rectangular (including square) shape, whether or
not having the character of articles and whether or not printed
or further worked." According to the facts, your product is
imported in sheets, printed with your name, but otherwise not cut
to shape or further worked.
In light of the text of heading 4008, you state that your
products are not hard rubber. The Explanatory Note at 578 states
that hard rubber is obtained by vulcanizing rubber with a high
proportion of sulphur to the point where it becomes practically
inflexible and inelastic. You state that the gasket materials
contain .5% sulphur by weight, and we note that the materials are
clearly flexible. We agree that the term hard rubber does not
encompass your products.
The Explanatory Notes to heading 4008 at 590 state that:
The classification of products made from vulcanized
rubber (other than hard rubber) combined (either in the
mass or on the surface) with textile materials is
subject to the provisions of Note 3 to Chapter 56 and
Note 4 to Chapter 59. Combinations of vulcanized
rubber (other than hard rubber) with other materials
remain classified in this heading provided they retain
the essential character of rubber.
The instant gasket materials are vulcanized rubber combined in
the mass, according to the facts, with textile fibers and mineral
fillers. Thus, we turn to the cited chapter notes to determine
their applicability here.
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Chapter 56 note 3 directs classification in heading 5603 of
nonwovens, whether or not impregnated, coated, covered or
laminated with rubber whatever the nature of these materials
(compact or cellular). Heading 5603 also includes nonwovens in
which rubber forms the bonding substance, but where there is no
coating involved. Do the aramid fibers create a nonwoven fabric?
We turn to the Explanatory Notes for heading 5603 at pages 774-76
for clarification.
Therein, a nonwoven is described as a "sheet or web of
predominantly textile fibers oriented directionally or randomly
and bonded." According to the facts, Durlon is produced by
combining rubber with solvent to form a pasty mush, which is
further combined with rubber curing agents. Separately, the
disassociated aramid fibers of less than a millimeter in length,
and composing 18 or 20 percent of the entire material by weight,
are mixed with mineral fillers. The rubber mixture is added to
the mineral filler-aramid fiber mixture and more solvent is
added. The finished dough is fed into a rubber sheeter machine
and rolled out to form the gasket material.
The first step in the nonwoven production process is
usually web formation. In the instant facts, fiber production
occurs separately from the material formation, web formation
never occurs, and the bonding that occurs is more accurately
characterized as a vulcanization process.
In sum, the Explanatory Notes generally describe nonwovens as
predominantly textile, following one of the web formation
processes enumerated. While the Explanatory Notes do not
necessarily limit the scope of 5603 to the production processes
listed therein, the instant production process is not one
commonly used in the textile industry. Overall, we find that
the instant materials fail to fit within the guidelines of the
Explanatory Notes for heading 5603.
Chapter 59 note 4 defines rubberized textile fabrics
classifiable in heading 5906 and presupposes the existence of a
base woven, braided, or knit textile fabric to which rubber is
applied. See Chapter 59 note 1. Since no such textile fabric
ever exists in the instant product, this note is not applicable.
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Since the instant material is not classifiable according to
the provisions of either of the preceding notes, we return to the
language of the Explanatory Notes for heading 4008. As noted
above, combinations of vulcanized rubber with other materials
remain classified in this heading if they retain the essential
character of rubber. However, we have not completed applying GRI
1 and need not yet determine the essential character of these
products.
The material of chief weight in both Durlon 8500 and 8600 is
mineral. Magnesium metasilicate or calcium metasilicate is the
predominant mineral, depending on the product, followed by barium
sulfate, calcium carbonate, magnesium silicate, silica, and
perhaps minor amounts of vermiculite, and the like. The General
Explanatory Notes for Chapter 68, at 895-96, state that the
chapter covers goods of mineral materials which are agglomerated
by means of binders and may be reinforced. Further, these goods
may be obtained by shaping operations which alter the form rather
than the nature of the constituent material. Thus, chapter 68
allows other substances to be mixed with minerals and remain
classifiable as articles of minerals.
In the instant materials, the minerals and fibers are
agglomerated by means of the rubber acting as the binder. The
aramid fibers provide reinforcement to the article in the form of
strengthening and flexibility. Heading 6815 most specifically
covers this merchandise, as an article of other mineral
substances, not elsewhere specified or included. By virtue of
the scope of chapter 68, the gasket materials are accurately
described as mineral in nature, with the rubber present for its
binding properties.
However, the rubber allegedly provides more than binding
properties to the gasket materials. Counsel for Durabla claims
that the critical performance criteria for the gasket materials
are sealing and compressibility and that both are provided by the
rubber component. Accordingly, we find that this merchandise is
described in part only by both headings 4008 and 6815, and by
application of GRI 2(b) and 3(a), we turn to GRI 3(b) to
determine the material which provides the essential character to
the gasket materials.
A gasket is a seal or packing used to make a pipe, or other
joint, air- or fluid-tight. See Webster's Third New
International Dictionary, 938 (unabridged, 1971 ed.). Regarding
the nature of the material and its role in relation to the use of
the gasket material, the vulcanized rubber not only binds the
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material, but provides a certain amount of compressibility when
the gasket is in use, and provides impermeability so that gas or
liquid does not transfer through the material from the pipes.
The nature and role of each of the six or eight mineral
fillers is to provide thermal and chemical resistance to the
material. Together the fillers act as the compounding agent to
extend the bulk of the rubber and contribute significantly to the
functioning of the rubber. Some of the fillers also have
sealing, drying or binding properties.
Counsel for Durabla provides evidence that both the academic
community and industry experts view vulcanized rubber with
significant amounts of compound fillers as a product of the
rubber industry. While this may be supportive, it is not
dispositive of classification within the HTSUS. Rather,
classification must be determined according to the GRIs.
At GRI 3(b), the mineral fillers provide as many important
attributes as does the vulcanized rubber to the gasket's
performance, that is, to the prevention of the escape of a gas or
fluid at pipe joints. The essential character of the product
cannot be determined to be attributable to either component. As
a result, application of GRI 3(c) is required, and the materials
are classifiable in the heading occurring latter in numerical
order between headings 4008 and 6815.
HOLDING:
Durlon 8500 and Durlon 8600 are classified in subheading
6815.99.4000, HTSUSA, as articles of other mineral substances,
not elsewhere specified or included, dutiable at the general rate
of 4.5% ad valorem. Under the United States-Canada Free Trade
Agreement, goods manufactured in Canada and classified in
subheading 6815.99.4000, HTSUSA, are eligible for a duty rate of
4% percent ad valorem if all applicable regulations are met. See
General Note 3(c)(vii), HTSUSA, for further details.
For the above reasons, ruling letter 083934, dated June 13,
1989, is hereby revoked, in accordance with 19 CFR Part 177.9(d).
Sincerely,
Harvey B. Fox,
Director, Office of
Regulations and Rulings