CLA-2 RR:CR:GC 965393 AM
Mr. Curtis Knauss
Neville Peterson LLP
80 Broad Street, 34th Floor
New York, NY 10004
Re: NY H80577; Sarcon®
Dear Mr. Knauss:
This is in reference to your letter, dated October 2, 2001, requesting reconsideration of New York Ruling Letter (NY) H80577, issued to you by Customs National Commodity Specialist Division, New York, on May 21, 2001, regarding the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of Sarcon®. We have reviewed the decision in NY H80577, as well as your supplemental submission dated March 22, 2002 wherein you request a ruling on products not discussed in NYH80577. You may request a ruling on those products by writing to the National Commodity Specialist Division, U.S. Customs Service, One Penn Plaza, 10th Floor, New York, N.Y. 10119.
We have also considered arguments you and Mr. John Peterson made in a telephone conference, with a member of my staff, on August 23, 2002. Following is our determination on the Sarcon® products discussed in NY H80577.
FACTS:
Sarcon® is an over 70% silicone compound mixed with alumina, aluminum nitride, boron nitride and ferrite. A brochure from the importer states “this universally applicable material can be made in an unlimited number of thermal management configurations.” The applications listed for the product are “thermal conductive insulators for semiconductors, compression jointing materials for thermistors and temperature sensors, thermal conductive material for all types of heaters.”
NY H80577 describes the merchandise thus: “The silicone sheet (known as “Sarcon”) will be imported in various forms. Some of the sheets will be in lengths while others will be imported in rolls and later cut. The lengths and thicknesses of the sheets vary. Some of the sheets are composed of silicone with only additives to impart color or heat resistance. Other sheets are reinforced with nylon or fiberglass to prevent stretching or distortion. The nylon support is in the form of extruded mesh, which is considered to be sheeting of plastics and not textile fabric.”
The specific merchandise at issue are Sarcon® GR gap filler pads and Sarcon® TR, HR, UR, and QR rolls and sheets. The submitted brochure states “Sarcon® thermal gap filler pads are highly conformable and high heat conducting gel materials in a versatile sheet form. They easily fit and adhere to most all shapes and sizes of components, including protrusions and recessed areas . . . . the supple consistency of the pads is excellent for filling air gaps and uneven surfaces.”
In NY H80577, Customs classified the silicone sheet that is either unsupported or supported with extruded mesh, and is over 0.152 millimeter in thickness and is not in rolls, in subheading 3920.99.10, HTSUS, which provides for other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials: of other plastics: film, strip and sheets, all the foregoing which are flexible: over 0.152 millimeter in thickness, and not in rolls. The silicone sheet that is either unsupported or supported with extruded mesh, and is in rolls, or if not in rolls is not over 0.152 millimeter in thickness, was classified in subheading 3920.99.20, HTSUS, which provides for other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials: of other plastics, flexible, other. The silicone sheet that is reinforced with fiberglass was classified in subheading 3921.90.4090, HTSUS, which provides for other plates, sheets, film, foil and strip, of plastics, other: flexible, other.
ISSUE:
What is the classification of Sarcon® sheets and rolls of varying thickness imported with and without fiberglass or nylon supports under the HTSUS?
LAW AND ANALYSIS:
Merchandise imported into the U.S. is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context that requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any related section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs.
In interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUSA. See T.D. 89 80, 54 Fed. Reg. 35127 (August 23, 1989).
The following HTSUS provisions are under consideration:
3920: Other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials:
* * * * * * * * * * *
3921: Other plates, sheets, film, foil and strip, of plastics:
* * * * * * * * * * * *
8546: Electrical insulators of any material:
Chapter note 1 to Chapter 39, HTSUS, defines “plastics” as “those materials of headings 3901 to 3914 which are or have been capable, either at the moment of polymerisation or at some subsequent stage, of being formed under external influence (usually heat and pressure, if necessary with a solvent or plasticiser) by moulding, casting, extruding, rolling or other process into shapes which are retained on the removal of the external influence.” Chapter note 6 to Chapter 39, HTSUS, defines the expression "primary forms," in pertinent part, as "(b) [B]locks of irregular shape, lumps, powders (including molding powders), granules, flakes and similar bulk forms." Chapter note 10 to Chapter 39, HTSUS, states that the expression “’plates, sheets, film, foil and strip’ applies only to plates, sheets, film, foil and strip (other than those of Chapter 54) and to blocks of regular geometric shape, whether or not printed or otherwise surface-worked, uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use).”
The ENs to Chapter 39, HTSUS, state that "[B]locks of regular geometric shape are not primary forms and are covered by the expression "plates, sheets, film, foil and strip." The ENs further state that "[S]uch plates, sheets, etc., whether or not surface-worked (including squares and other rectangles cut therefrom), with ground edges, drilled, milled, hemmed, twisted, framed or otherwise worked or cut into shapes other than rectangular (including square), are generally classified in headings 39.18, 39.19 or 39.22 to 39.26."
The ENs to Chapter 39, HTSUS, discussing primary forms state, in pertinent part, as follows:
Primary forms
Headings 39.01 to 39.14 cover goods in primary forms only. The expression “primary forms” is defined in Note 6 to this Chapter. It applies only to the following forms:
(1) Liquids and pastes. These may be the basic polymer which requires “curring” by heat or otherwise to form the finished material, or may be dispersions (emulsions and suspensions) or solutions of the uncured or partly cured materials. In addition to substances necessary for “curring” such as hardeners (cross-linking agents) or other co-reactants and accelerators), these liquids or pastes may contain other materials such as plasticisers, stabilisers, fillers and colouring matter, chiefly intended to give the finished products special physical properties or other desirable characteristics. The liquids and pastes are used for casting, extrusion, etc., and also as impregnating materials, surface coatings, bases for varnishes and paints, or as glues, thickeners, flocculants, etc.
When as a result of the addition of certain substances, the resultant products answer to the description in a more specific heading elsewhere in the Nomenclature, they are excluded from Chapter 39; this is, for example, the case with:
(a) Prepared glues - see exclusion (b) at the end of this General Explanatory Note.
(b) Prepared additives for mineral oils (heading 38.11). . . .
Powder, granules and flakes. In these forms they are employed for moulding, for the manufacture of varnishes, glues, etc. and as thickeners, flocculants, etc. They may consist of the unplasticised materials which become plastic in the moulding and curing process, or of materials to which plasticisers have been added; these materials may incorporate fillers (e.g., wood flour, cellulose, textile fibres, mineral substances, starches), colouring matter or other substances cited in Item (1) above. Powders may be used, for example, to coat objects by the application of heat with or without static electricity.
Blocks of irregular shape, lumps and similar bulk forms, whether or not containing fillers, colouring matter or other substances cited in Item (1) above. Blocks of regular geometric shape are not primary forms and are covered by the expression “plates, sheets, film, foil and strip” (see Note 10 to this Chapter).
EN 85.46 states, in pertinent part, the following:
Insulators of this heading are used for the fixing, supporting or guiding of electric current conductors while at the same time insulating them electrically from each other, from earth, etc. . . . . Usually there is a relation between the size of the insulator and the voltage (large for high voltages, smaller for low voltages). . . . Insulators are often given bell, accordion, petticoat, grooved, cylinder or other shapes. Certain types are constructed in such a way that when in position they may contain oil to prevent contamination of the surface by conducting materials.
Insulators may be made of any insulating material, usually very hard and non-porous, e.g., ceramic material (porcelain, steatite), glass, fused basalt, hardened rubber, plastics or compounded insulating materials. They may contain fixing devices (e.g., metal brackets, screws, bolts, clips, laces, slings, pins, cross pieces, caps, rods, suspension or carrying clamps). Insulators equipped with metal horns or guard shields or other devices to form lightning arresters are excluded (heading 85.35).
Insulators are used on outdoor cables, e.g., in telecommunications, power networks, electrical traction systems (railway, tramway, trolleybus, etc.), and also for indoor installations or on certain machines and appliances.
The insulators of this heading include:
(A) Suspension insulators, such as:
(1) Chain suspension insulators. These are used mainly on outdoor networks, and consist of several insulating elements. The conductor cable or wire is fixed at the bottom of the assembly which is hung on a suitable support (pylon arm, suspension cable, etc.).
Suspension chain insulators include cap or hood type insulators, double petticoat insulators; chain link insulators; linked rod insulators.
(2) Other suspension insulators (e.g., insulators in the form of balls, bells, pulleys, etc.) for overhead lines of railways, trolleybuses, cranes, etc., or for aerials.
(B) Rigid insulators.
These may be fitted with supports (e.g., metal hooks, pins or the like); or they may be without supports, but intended to be attached to power or telegraph poles, etc., or fitted to walls, ceilings, floors, etc., by means of nails, screws, bolts, etc. Insulators with fixed supports may be built up of two or more elements; those without supports are usually single units. They may be of various shapes (e.g., bells, cones, cylinders, buttons, pulleys).
(C) Leading-in insulators.
These are used for guiding cables or wires through walls, etc. They are of various forms (e.g., cone or double cone shaped insulators, disc insulators, sleeves, pipes and tubular bends).
The Sarcon® sheet and roll material, being a silicone compound, contains insulating properties in that it is a poor conductor of electricity. It is not, however, anything like the examples of “insulators” in EN 85.46. It does not function to guide electric current conductors while insulating them from each other. There is no relation between the size of the insulating material sheet or roll and the voltage it is ultimately used for. The Sarcon® sheets and rolls are trimmed to size after entry. They are not meant for a particular part of a machine but are placed wherever a gap allows. The sheets and rolls are not a suspension, chain, rigid or leading in insulator. It is not a very hard and non-porous material such as ceramic material (porcelain, steatite), glass, fused basalt, or hardened rubber. Nor is the sheet or roll used on outdoor cables, e.g., in telecommunications, power networks, electrical traction systems (railway, tramway, trolleybus, etc.). The sheet or roll is not bell, accordion, petticoat, grooved, cylinder or constructed in such a way as to contain oil.
Furthermore, in HQ 956621, dated September 28, 1994, we stated the following:
The issue of whether material is to be deemed an article, whether finished or unfinished, for classification purposes has been examined at length by the courts. Customs has long adhered to the general principal set forth in the following cases, that goods which remain material when entered are not classifiable as a particular, identifiable article unfinished. See The Harding Co. et al v. United States, 23 CCPA 250, T.D. 48109 (1936) (rolls of brake lining held to be material because the identity of the brake lining was not fixed with certainty); American Import Co. v. United States, 26 CCPA 72, 75, T.D. 49612 (1938) (lengths of silk fishing leader gut classified as manufactures of silk rather than unfinished leaders); F.H. Paul & Stein Bros., Inc. v. United States, 44 Cust. Ct. 130, C.D. 2166 (1960) (rolls of aluminum foil without lines of demarcation held to be material and not articles featuring an electrical element or device); Sandvik Steel, Inc. v. United States, 66 Cust. Ct. 12, C.D. 4161, 321 F.Supp. 1031 (1971) (knife steel in coils with no lines of demarcation, requiring cutting to length, held to be material rather than unfinished blades); Naftone, Inc. v. United States, 67 Cust. Ct. 340, C.D. 4294 (1971) (rolls of plastic film without demarcations, having only one use, held to be insulating material).
Hence, this thermally conductive, electrically insulating compression jointing material in sheets and rolls is not the article described in heading 8546, HTSUS, an electrical insulator, because it is not in the form of an insulator or dedicated to use as an insulator.
Rather, Sarcon® sheet and roll material is a flexible silicone compound moulded to shape as described by note 1 to Chapter 39. It contains primarily silicone of heading 3910, HTSUS. The plastics of headings 3901 to 3914, HTSUS, may contain plasticisers, stabilisers, fillers (e.g., wood flour, cellulose, textile fibres, mineral substances, starches) colouring matter, and other material chiefly intended to give the finished products special physical properties or other desirable characteristics. The other ingredients in the instant merchandise, namely alumina, aluminum nitride, boron nitride and ferrite, are coloring matter and other material added to the silicone compound to impart special physical properties and desirable characteristics. Specifically, the alumina allows the silicone to conduct heat thereby preventing electrical fires. Thermal conductivity is a special property and preventing fires is a desirable characteristic of an insulating material. Hence, the instant merchandise, if entered in primary form, is classifiable in heading 3910, HTSUS, as “silicones in primary forms.” However, when entered in a sheet or roll, the plastics of headings 3901 to 3914, are classified in headings 3920 and 3921 depending upon the thickness and existence of other material support of the sheet or roll.
You argue that HQ 952979, dated May 11, 1993, supports your position. HQ 952979 classified a liquid product consisting of over 20% siloxane polymers and alumina in subheading 3823.90.50, HTSUS (now subheading 3824.90.91, HTSUS) as “other” products of the chemical or allied industries. The product in that case was a liquid containing adhesive and thermal conductivity properties. The competing provisions in that case were heading 3506, HTSUS, the provision for “prepared adhesives,” and heading 3823, HTSUS, the provision for “preparations of the chemical industry.” Chapter 39 contains a specific exclusion for products with adhesive qualities. Furthermore, there is no indication that the liquid would have met the specifications in the ENs for liquids. Lastly, the liquid consisted of far less plastics material than does Sarcon®. The instant merchandise is neither a liquid nor an adhesive nor a mixture of just 20% siloxane polymers with alumina. HQ 952979 is therefore irrelevant with regards to the instant merchandise.
HOLDING:
The silicone sheet that is either unsupported or supported with extruded mesh, and is over 0.152 millimeter in thickness and is not in rolls, is classified in subheading 3920.99.10, HTSUS, which provides for "[O]ther plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials: [O]f other plastics: [F]ilm, strip and sheets, all the foregoing which are flexible: [O]ver 0.152 millimeter in thickness, and not in rolls." The silicone sheet that is either unsupported or supported with extruded mesh, and is in rolls, or if not in rolls is not over 0.152 millimeter in thickness, is classified in subheading 3920.99.20, HTSUS, which provides for "[O]ther plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials: [O]f other plastics: [F]ilm, strip and sheets, all the foregoing which are flexible: [O]ther." The silicone sheet that is reinforced with fiberglass is classified in subheading 3921.90.4090, HTSUS, which provides for "[O]ther plates, sheets, film, foil and strip, of plastics: [O]ther: [F]lexible: [O]ther.
EFFECT ON OTHER RULINGS:
NY H80577 is affirmed.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division