HQ 089454

October 3, 1991

CLA-2 CO:R:C:T 089454 KWM

CATEGORY: Classification

TARIFF NO.: 5407.42.0060

Mr. Robert W. Murphy

Regional Director, Commercial Operations

United States Customs Service

Suite 1501

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.

FACTS:

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.

ISSUE:

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.

Rubberized textiles

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

Note 4.

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,

HTSUSA.

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.

Constituent material

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.

HOLDING:

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

requirements.

A copy of this ruling should be attached to the notice of

ruling (CF 19) to be sent to the protestant.

Sincerely,

John A. Durant, Director

Commercial Rulings Division