OT:RR:CTF:TCM H118307 HvB
Brent Reider
International Trade Group, Inc. 2920 North Star Road
Columbus, OH 43221-2961
RE: Modification of NY H80297 and Revocation of NY 843391; Classification of plastic heat-shrink tubing.
Dear Mr. Reider:
This letter is to inform you that U.S. Customs and Border Protection (CBP) has reconsidered New York Ruling Letter (NY) H80297, issued to you on May 31, 2001, on the classification of Insultube 500-546 under the Harmonized Tariff Schedule of the United States (HTSUS).
We have reviewed NY H80297 and have found it to be partially in error. For the reasons set forth below, we hereby modify NY H80297 with respect to the Insultube 500-546, and revoke NY 843391, dated July 21, 1989, in which CBP classified similar merchandise.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)(1)), 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 in the CUSTOMS BULLETIN, Volume 49, No. 30, on July 29, 2015, proposing to modify NY H80297, to revoke NY 843391, and to revoke any treatment accorded to substantially identical transactions. CBP received one comment in response to this notice, which is addressed herein.
FACTS: The subject merchandise is heat-shrink tubes made from polyethylene. NY H80297 described the merchandise as consisting of “a 50-foot length of polyethylene tubing that is used for insulating electrical conductor.” In NY 843391, CBP stated that the subject merchandise consisted of “polyethylene heat-shrinkable products used to insulate telecommunication cable splices and seal the ends of PVC cables.”
ISSUE:
Whether the heat-shrink tubes are classified in heading 3926, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914” or, in heading 8546, HTSUS, which provides for “Electrical insulators of any material”?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined 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, the remaining GRI may then be applied.
The following 2015 HTSUS provisions are under consideration:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914
***
3926.90 Other
8546 Electrical insulators of any material
***
8546.90 Other
The Notes to Chapter 39 (which include heading 3926) provide in pertinent part:
2. This chapter does not cover:
…
(s) Articles of section XVI (machines and mechanical or electrical
appliances[.]
The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The ENs to heading 8546, HTSUS, provide in relevant part:
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). Similarly, the shape of the various types of insulators is influenced by electric, thermic and mechanical considerations. The external surface is very smooth in order to prevent the formation of deposits of non insulating materials, such as water, salts, dusts, oxides and smoke. 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 instant merchandise consists of plastic tubing that is used to provide a protective seal or jacket. Note 2(s) to Chapter 39, Section VII, HTSUS, excludes “[a]rticles of Section XVI”, which includes heading 8546, HTSUS. Accordingly, before considering whether the articles are classifiable in heading 3926, HTSUS, as a plastic article, it must first be determined whether the subject merchandise is classifiable as an electrical appliance of Section XVI, in heading 8546, HTSUS, which provides for “electrical insulators.”
In order to be classified as an electrical insulator of heading 8546, HTSUS, an article must serve two functions: (1) it must fix, support, or guide an electrical current, and (2) it must also insulate the electric current conductors from each other. See Headquarters Ruling Letter (HQ) 088157, dated July 2, 1992, citing to HQ 089276, dated July 24, 1991. See EN 85.46. Furthermore, EN 85.46 lists three types of electrical insulators: suspension insulators, rigid insulators, and leading-in insulators. A picture of the subject Insultube 500-546, which is currently discontinued, is available on amazon.com. We note that the instant plastic tubing does not share physical characteristics nor, is it a device that fixes or guides electrical currents. Instead, the subject merchandise is used to form a protective jacket for wires that are buried underground. Thus, we find that the instant articles are not described by heading 8546, HTSUS.
CBP received one comment written on behalf of the importer Tyco Electronics, Inc. (“Tyco Electronics”). In its comment, Tyco Electronic states that it does not believe that CBP’s proposal to classify polyethylene heat shrink tubing in heading 3926 “establishes a general rule that ALL heat shrink tubing is classifiable in heading 3926.” The comment continues below:
Tyco Electronics respectfully submits that there are certain types of heat shrink tubing that remain classifiable in heading 8546. Due to Tyco Electronics’ concern that local ports may interpret the proposed modification/revocation of these rulings as establishing a bright line rule concerning the classification of heat shrink tubing, Tyco Electronics requests that Customs state, in any final modification/revocation, that there is no such bright line rule and that the classification of heat shrink tubing ultimately is a fact specific to the characteristics of the heat shrink tubing. In other words, Tyco Electronics requests that Customs clarify that the modification/revocation only applies to the specific products at issue in NYRL H80297 and NYRL 843391 and that that plastic heat shrink tubing may remain classifiable in heading 8546 provided the requirements of classification in heading 8546 are met.
CBP declines to state that the proposed notice applies only to the rulings at issue as Tyco Electronics suggests. An insulator of heading 8546, HTSUS, both insulates and supports/guide an electrical conductor. CBP has ruled that merely because a material is insulative or non-conductive does not mean that it is an electrical insulator. See, e.g., HQ 966980, dated October 25, 2004, pertaining to the classification of fabricated mica. Tyco Electronics did not elaborate as to how or why “certain types of heat shrink tubing” are classifiable in heading 8546 as electrical insulators. While we agree that determining the classification of an article in heading 8546 is a fact-specific inquiry, we do not agree that a product that consists of plastic tubing, whether heat-shrinkable or not, is prima facie classifiable in heading 8546. Heat shrink tubing has numerous applications. Thus, heat shrinkable tubing that is imported in material lengths to be cut after importation does not meet the terms of heading 8546, which provides for “electrical insulators.”
CBP has previously classified substantially similar merchandise in heading 3926, HTSUS. In HQ 082619, dated February 26, 1990, CBP was presented with polyethylene and ethylene vinyl acetate heat shrinkable tubing, and found that the articles were classifiable in heading 3926. See also HQ 082700, dated February 15, 1990, describing the tubing as “designed for corrosion protection and sealing of joint connections.” In NY E89483, dated November 19, 1999, CBP classified heat shrink tubing described as “nonconductive polyolefin… designed to provide protection or the wires in a variety of electric and electronic appliances” in heading 3926. Similarly, we classified shrinkable PVC tubes in heading 3926. See NY J81242, dated February 26, 2003.
In light of the foregoing, we find that the heat shrinkable tubing at issue is classified in heading 3926, HTSUS, specifically subheading 3926.90.99, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.” The 2015 general duty rate is 5.3% ad valorem.
HOLDING:
By application of GRI 1 and pursuant to Note 2(s) of Chapter 39, Section VII, the subject heat shrink tubes are classifiable under heading 3926, specifically subheading 3926.90.99, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.” The 2015 duty rate is 5.3% ad valorem.
EFFECT ON OTHER RULINGS
NY H80297, dated May 31, 2001, is hereby modified with respect to the Insultube 500-546 described therein.
NY 843391, dated July 21, 1989, is hereby revoked.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the CUSTOMS BULLETIN.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division