HQ W968436

January 11, 2007

RR:CTF:TCM W968436 tmf

CATEGORY: Classification

TARIFF NO.: 5407.10.0090

Lindsay B. Meyer, Esq.

Daniel J. Gerkin, Esq.

Venable, LLP

575 7th Street NW

Washington, D.C. 20004

RE: Classification of Twill Woven Fabric Constructed with Resorcinol
Formaldehyde Latex Fabric for Use in the Manufacture of Conveyor Belts

Dear Ms. Meyer and Mr. Gerkin:

This letter concerns your request to the National Commodity Specialist
Division on behalf of your client, Goodyear Tire and Rubber Company
(\"Goodyear\") for a prospective tariff classification determination
under the Harmonized Tariff Schedule of the United States Annotated
(HTSUSA) of certain twill nylon woven fabric dipped in resorcinol
formaldehyde latex for use in the manufacturing of conveyor belts.

Your request along with two samples was sent to this office for our
reply.

**FACTS:**

The merchandise under consideration is M439, a twill woven nylon fabric
that is dipped in resorcinol formaldehyde latex (RFL). You indicate that
it will be imported from China to be further manufactured for ultimate
use on certain conveyor belting machines.

The product is composed of 100 percent filament nylon 66 that is
manufactured using 1680 denier high tenacity filament nylon yarns in the
warp and 1260 denier high tenacity filament nylon yarns in the filling.
You state that the yarns have a tenacity of 81.2 centinewtons/tex and
the nominal weight of the M439 fabric is 34.5 ounces per square yard (or
1170 grams per square meter), and the nominal fabric gauge is 0.066
inches or 1.68 millimeters. You state that your client intends to import
the M439 fabric in the width range of 49.10 to 75 inches. You also
provided a specification sheet that we reviewed.

With respect to the fabric\'s manufacturing process, you indicate that
the M439 fabric will be twice dipped in a water-based resorcinol
formaldehyde latex ("RFL") emulsion that combines resorcinol
formaldehyde resin with butadiene/styrene/vinylpyridine rubber. Based on
this formulation, you state the fabric is coated with an RFL adhesive
that measures approximately 10 microns and accounts for between 8 and 10
percent of the fabric weight, which is the source of the characteristic
brown-orange fabric color. You state that the coating functions to
improve the fabric's adhesion to rubber. After importation, your client
will bond the subject fabric with rubber to produce conveyor belting for
various use applications. You also indicated in your submission that the
subject fabric is not considered rubberized within the meaning of Note
4(a) to Chapter 40, HTSUSA.

You assert that since the subject product's coating is visible with the
RFL adhesive, it meets Notes 2 and 5 to Chapter 59, HTSUSA, and is
classifiable in subheading 5903.90.2500, HTSUSA, or in the alternative,
subheading 5907.00.6000, HTSUSA.

**ISSUE:**

What is the classification of the subject fabric 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 5903, HTSUSA, provides for \"textile fabrics impregnated,
coated, covered or laminated with plastics, other than those of heading
5902. EN 59.03 states, in pertinent part:

> This heading also covers dipped fabrics (**other than** those of
> **heading 59.02**), impregnated to improve their adhesion to rubber,
> and textile fabrics which are splattered by spraying with visible
> particles of thermoplastic material and are capable of providing a
> bond to other fabrics or materials on the application of heat and
> pressure.

As indicated in the \"Facts\" section of this letter, you state that the
subject fabric is not rubber within the meaning of Note 4(a) to Chapter
40, HTSUSA.[^1] You assert that the subject fabric is classifiable in
subheading 5903.90.2500, HTSUSA, which provides for \"Textile fabrics
impregnated, coated, covered or laminated with plastics, other than
those of heading 5902: Other: Of man-made fibers: Other: Other\",
dutiable at 7.5 percent *ad valorem*. In the alternative, you suggest
classification in subheading 5907.00.6000, HTSUSA, which provides for
\"Textile fabrics otherwise impregnated, coated or covered; painted
canvas being theatrical scenery, studio back-cloths or the like: Other:
Of man-made fibers,\" dutiable at a Free rate*.*

We agree that the subject fabric is dipped with RFL which results in a
change in color to the original greige fabric. The issue is whether the
coating is visible to the naked eye. We refer to Note 2(a)(1) to Chapter
59, HTSUSA, which states 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 RFL is not visible to
the naked eye and the change of color cannot be taken into account.

Although you refer to the effects of the plastic upon the fabric, such
as the fabric stiffness and fabric sheen, none of these are considered
to be factors in evaluating the coating's visibility. You also referred
to *Verosol USA, Inc. v. United States,* 941 F. Supp 139 (Ct. Int'l
Trade, 1996), in which the Court of International Trade opined that the
visible sheen imparted by the aluminum fabric coating[^2] along with the
obscuring of individual fabric fibers and the enhancement of the
fabric's weave was enough to render the coating visible to the naked eye
for purposes of Chapter 59. [Id]{.underline}. at 141. However, the Court
in *Verosol* indicated that sheen alone is not enough to determine
visible coating. [Id.]{.underline} at 142. In this case, the dipped M439
fabric , lacks shine or sheen, and has a dull or matte-like finish.
Moreover, the greige is different: it has shine or sheen and a silvery
color. However, with the dipped M439, there does not appear to be any
emphasis of the fabric's texture.[^3] Thus, the M439 is distinguishable
from the fabrics at issue in *Verosol* and *Foxfire* since the M439 has
only a change in sheen (from shiny to dull), which alone is insufficient
to establish a visible coating.

CBP has issued rulings on substantially similar woven fabrics coated
with RFL. Specifically, we refer you to Headquarters Ruling Letter (HQ)
966518 dated November 6, 2003 (which classified woven cotton fabric
treated with styrene-butadiene rubber in subheading 5208.32.3040,
HTUSUS); and four Headquarters rulings which classified various types of
fabrics in subheading 5407.42.0030. (HQ 966519, dated November 6, 1993;
HQ 966534, dated November 6, 1993; HQ 966535, November 6, 1993, and HQ
966536, dated November 6, 1993.) In each ruling, CBP revoked prior
rulings and ruled that the RFL coating was not visible to the naked eye
and that the change of color could not be a factor. We find this to be
the case with the instant M439. As such, it is not classifiable *eo
nomine* as a plastic coated textile fabric of heading 5903.

Further, it is precluded from heading 5907, which provides for textile
fabrics impregnated with certain substances other than plastics or
rubber, on two counts: first, the coating is not visible to the naked
eye; and second, there is no evidence from you that the RFL coating
formulation includes any of the exemplars outlined in EN 59.07 (e.g.,
coated with tar, bitumen, wax, natural resin and camphor, etc.).
Therefore, as it is precluded from Chapter 59, it is classifiable in
Chapters 50 to 55, 58 or 60. *See* EN 59.03.

In this case, we find heading 5407, HTSUSA, which provides for \"Woven
fabrics of synthetic filament yarn, including woven fabrics obtained
from materials of heading 5404," to be appropriate. All of the yarns
which form M439 have a total tenacity measurement of 81.2
centinewtons/tex, which exceeds the requirement of 60 cN/tex of Note 6
to Section XI, HTSUS. Specifically, the fabric is classifiable in
subheading 5407.10.0090, which provides, *eo nomine* for "woven fabrics
obtained from high tenacity yarn of nylon or other polyamides or of
polyesters...Other." For other instances where fabric dipped in RFL have
been classified in subheading 5407.10.0090, see the previously
referenced ruling letters, as well as NY K89807, dated October 26, 2004,
and K87202, dated July 16, 2004.

**HOLDING:**

M439, a twill woven nylon fabric that is dipped in resorcinol
formaldehyde latex (RFL) is classified in subheading 5407.10.0090,
HTSUSA, which provides for "woven fabrics of synthetic filament yarn,
including woven fabrics obtained from materials of heading 5404: woven
fabrics obtained from high tenacity yarn of nylon or other polyamides or
of polyesters, other." The 2007 applicable column one general rate of
duty is 13.6 *ad valorem* and the textile quota category number is 620.

Duty rates are provided for your convenience and are subject to change.
The text of the most recent HTSUSA and the accompanying duty rates are
provided on the world wide web at www.usitc.gov.

With the exception of certain products of China, quota/visa requirements
are no longer applicable for merchandise which is the product of World
Trade Organization (WTO) member countries. The textile category number
above applies to merchandise produced in non-WTO member-countries. Quota
and visa requirements are the result of international agreements that
are subject to frequent renegotiations and changes. To obtain the most
current information on quota and visa requirements applicable to this
merchandise, we suggest you check, close to the time of shipment, the
\"Textile Status Report for Absolute Quotas\" which is available on our
web site at [www.cbp.gov]{.underline}. For current information regarding
possible textile safeguard actions on goods from China and related
issues, we refer you to the web site of the Office of Textiles and
Apparel of the Department of Commerce at otexa.ita.doc.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 the local CPB office prior to importation
of this merchandise to determine the current status of any import
restraints or requirements.

A copy of this ruling letter should be attached to the entry documents
filed at the time this merchandise is entered. If the documents have
been filed

without a copy, this ruling should be brought to the attention of the
CBP officer handling the transaction.

> Sincerely,
>
> Gail A. Hamill, Chief
>
> Tariff Classification and Marking Branch

[^1]: Furthermore: CBP has determined that resorcinol formaldehyde latex
    (RFL) is not a rubber. Rather, RFL 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. For further discussion, see HQ
    966535, dated November 6, 2003, which determined that RFL dipped
    fabrics were not classifiable in heading 5903, HTSUSA, since they do
    not satisfy the requirements of Note 2(a)(1) to Chapter 59.

[^2]: The fabric was described as "woven polyester that has undergone a
    vacuum vapor-deposition process that coats one side of the fabric
    with aluminum. The coated side of the fabric is visibly different
    from the side which is not coated. The aluminum gives the fabric a
    metallic sheen or luster and a silvery color." [Id.]{.underline} at
    140.

[^3]: Note: In [Foxfire, Inc. v. United States]{.underline}*,* 941 F.
    Supp. 1258, the Court of International Trade determined certain
    oilskin garments' waxy appearance and sheen were visible attributes
    of impregnation and not effects of the impregnation. The Court
    concluded that classification was appropriate in heading 6210, HTSUS
    since the term "oilskins" is expressly provided within EN 62.10.