CLA-2 RR:CR:GC 964704 nel/JGB
Ms. Kimberly M. Novak
Customs Compliance Analyst
Emery Customs Brokers
6940A Engle Road
Middleburg Heights, OH 44130
RE: Reconsideration of NY F88342; Noxtite PA-402 acrylic polymer
Dear Ms. Novak:
This is in response to your letters of October 24 and November 27, 2000, to the Customs National Commodity Specialist Division, on behalf of Freudenberg-NOK concerning the classification of Noxtite PA-402, under the Harmonized Tariff Schedule of the United States (HTSUS). Your letters were referred to this office for reply.
In preparing our response, we have reviewed the decision in NY F88342 dated June 30, 2000, in which Noxtite PA-402 was classified as an acrylic plastic in primary form under subheading 3906.90.2000, HTSUS. The information you supplied by letter dated November 27, 2000, changed the facts on which ruling NY F88342 was based. Therefore, we are changing the classification of the merchandise and revoking NY F88342.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published on February 28, 2001, in Vol. 35, No. 9 of the Customs Bulletin, proposing to revoke NY F88342 and to revoke the treatment pertaining to Noxtite PA-402 acrylic polymer. No comments were received in response to the notice.
FACTS:
The merchandise is described as Noxtite PA-402, an acrylic polymer. The product is a copolymer consisting of several acrylic monomers with a high proportion of carbon fillers.
You claimed classification in subheading 4002.99.0000, HTSUS, which provides for: Synthetic rubber and factice derived from oils, in primary forms or in plates, sheets or strip; mixtures of any product of heading 4001 with any product of this heading, in primary forms or in plates, sheets or strip: Other: Other.
The dumbbell-shaped samples submitted for NY F88342 failed to meet the test for compliance with the vulcanization, elongation, and recovery criteria for synthetic rubber in Chapter 40 note 4(a), HTSUS, due to a high content of carbon reinforcing pigment, which made these samples brittle. Customs classified the merchandise in subheading 3906.90.2000, HTSUS, which provides for: Acrylic polymers in primary forms: Other: Other: Plastics.
Subsequent dumbbell-shaped samples met Chapter 40 note 4(a), HTSUS, requirements due to a lower carbon content as evidenced by the vulcanizing recipe and test results.
ISSUE:
Is Noxtite PA-402 classifiable as plastic under Chapter 39, HTSUS, or as rubber under Chapter 40, HTSUS.
LAW & ANALYSIS:
The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTSUS. The majority of imported goods are classified by application of GRI 1; that is, according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, then the remaining GRIs may be applied.
The following headings and legal notes are relevant to the classification of Noxtite PA-402, acrylic polymer:
Heading 3906, HTSUS, provides for: Acrylic polymers in primary forms.
Chapter 39 Note 3 states that: Headings 3901 to 3911 apply only to goods of a kind produced by chemical synthesis, falling in the following categories: … (c) Other synthetic polymers with an average of at least five monomer units.
Chapter 39 Note 4 states that: The expression “copolymers” covers all polymers in which no single monomer contributes 95 percent or more by weight to the total polymer content.
Chapter 39, Additional U.S. Note 1 states that: For the purposes of this chapter, the term “elastomeric” means a plastic material which after cross-linking can be stretched at 20(C to at least three times its original length and that, after having been stretched to twice its original length and the stress removed, returns within five minutes to less than 150 percent of its original length. Elastomeric plastics may also contain fillers, extenders, pigments or rubber-processing chemicals, whether or not such plastics material, after the addition of such fillers, extenders, pigments or chemicals, can meet the tests specified in the first part of this note.
Heading 4002, HTSUS, provides for: Synthetic rubber and factice derived from oils, in primary forms or in plates, sheets or strip; mixtures of any product of heading 4001 with any product of this heading, in primary forms or in plates, sheets or strip.
Chapter 40 Note 4 states that in heading 4002: “Synthetic rubber” applies to: (a) Unsaturated synthetic substances which can be irreversibly transformed by vulcanization with sulfur into non-thermoplastic substances which, at a temperature between 18(C and 29(C, 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 5 minutes, to a length not greater than 1-1/2 times their original length. For the purposes of this test, substances necessary for the cross-linking, such as vulcanizing activators or accelerators, may be added; the presence of substances as provided for by note 5(b)(ii) and (iii) is also permitted. However, the presence of any substances not necessary for the cross-linking, such as extenders, plasticizers and fillers, is not permitted; ….
Chapter 40 Note 5 (a) states that: Heading 4002 does not apply to any rubber or mixture of rubbers which has been compounded, before or after coagulation, with: (i) Vulcanizing agents, accelerators, retarders or activators (other than those added for the preparation of prevulcanized rubber latex); (ii) Pigments or other coloring matter other than those added solely for the purpose of identification; (iii) Plasticizers or extenders (except mineral oil in the case of oil-extended rubber), fillers, reinforcing agents, organic solvents or any other substances, except those permitted under (b).
Noxtite PA-402 is a copolymer consisting of several acrylic monomers with a high proportion of carbon fillers. As such, it is excluded from heading 4002, HTSUS, by Chapter 40 Note 5(a), quoted above.
The original dumbbell-shaped samples of Noxtite PA-402, submitted for NY F88342 dated June 30, 2000, did not meet the “synthetic rubber” requirements of chapter 40 note 4(a). Nor did they meet the “elastomeric” requirements of chapter 39, additional U.S. note 1, and accordingly were classified as an acrylic plastic under subheading 3906.90.2000, HTSUS, which provides for: Acrylic polymers in primary forms: Other: Other: Plastics.
The dumbbell-shaped samples of Noxtite PA-402, submitted subsequently, met the test for compliance with the stretch and return criteria for elastomers in Chapter 39, Additional U.S. Note 1, which also provides that elastomeric materials may contain fillers, whether or not such materials, after addition of such fillers, can met the elongation and recovery test. Based on these test results, Noxtite PA-402 is an acrylic polymer that falls under subheading 3906.90.1000, HTSUS, which provides for: Acrylic polymers in primary forms: Other: Elastomeric.
HOLDING:
Noxtite PA-402 acrylic polymer is classified under subheading 3906.90.1000, HTSUS, which provides for: Acrylic polymers in primary forms: Other: Elastomeric.
EFFECT ON OTHER RULINGS:
NY F88342 dated June 30, 2000, is hereby REVOKED.
Sincerely,
John Durant, Director
Commercial Rulings Division