CLA-2 CO:R:C:G 086467 SLR
District Director
U.S. Customs
555 Battery Street
San Francisco, CA 94126
RE: Protest No. 2809-9-001891;
"DAI-EL Thermoplastics T-630"
Dear Sir:
This correspondence constitutes our decision regarding
Application for Further Review of Protest No. 2809-9-001891,
filed by the Sumitomo Corporation of America, on September 25,
1989. It concerns entry number 89-224-4015650-7, liquidated on
August 25, 1989.
FACTS:
The subject merchandise is designated as "DAI-EL
Thermoplastics T-630." A shipment of this product was liquidated
in subheading 3911.90.2000, Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), which provides for
thermoplastic resins, dutiable at 6.1 percent ad valorem.
The importer requests classification in subheading
3911.90.1000, HTSUSA, which provides for polysulfides and other
elastomeric polymers not elsewhere specified or included in
Chapter 39. This subheading is free of duty. It is claimed
that "DAI-EL Thermoplastics T-630" is the same material as
Sumitomo's "DAI-EL Thermoplastics T-530" -- a product earlier
analyzed by a U.S. Customs lab and determined to be classifiable
in subheading 3911.90.1000, HTSUSA. Accordingly, the protestant
requests that entry number 89-224-4015650-7 be re-liquidated
under subheading 3911.90.1000, HTSUSA, resulting in a refund of
duties.
-2-
ISSUE:
Whether the subject product is classifiable in subheading
3911.90.2000, HTSUSA, and, if not, what classification is
appropriate.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification is determined
according to the terms of the headings and any relevant section
or chapter notes.
Heading 3911, HTSUSA, provides for petroleum resins,
coumarone-indene resins, polyterpenes, polysulfides, polysulfones
and other products specified in note 3 to this chapter, not
elsewhere specified or included, in primary forms. Note 3 to
Chapter 39 indicates 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 a average
of at least five monomer units;
* * *
While "DAI-EL Thermoplastics T-630" qualifies as a synthetic
polymer of the type described in Note 3, it would not be
classified in heading 3911, because the subject product is
"elsewhere included" in Chapter 39.
Heading 3904, HTSUSA, provides for polymers of vinyl
chloride or other halogenated olefins, in primary forms.
The subject product is a polymer of "other halogenated olefins"
-- more specifically, fluorinated olefins. Consequently, it is
provided for and classifiable in Heading 3904.
Subheading 3904.69.1000, HTSUSA, provides for elastomeric
fluoropolymers. The subject product can be chemically defined
and is commonly referred to in the trade as a fluoropolymer. For
a subheading 3904.69.1000 classification, the issue becomes
whether the product is an "elastomeric."
-3-
Additional U.S. Legal Note 1 to Chapter 39 indicates that
for the purposes of this chapter:
[T]he term "elastomeric" means a plastics
material which after cross-linking can be
stretched at [20 degrees centigrade] 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. * * *
Customs has learned through a representative of the
Sumitomo Corporation that "DAI-EL Thermoplastics T-630" was
not designed to be cross-linked and, in fact, cannot be
cross-linked other than by experimental processes. Lacking this
characteristic, the subject product does not meet the U.S. Legal
Note 1 definition of "elastomeric", and is not classifiable in
subheading 3904.69.1000, HTSUSA.
While elasticity testing performed earlier by Customs
laboratories indicated that "DAI-EL Thermoplastics T-530" met the
stretch requirements for the U.S. Note 1 definition of
"elastomeric", it appears that that testing involved "dumbbells"
which had not been cross-linked. As the basis for the "DAI-EL
Thermoplastics T-530" classification is flawed, that
determination is of no relevance to the instant case.
HOLDING:
The subject product, "DAI-EL Thermoplastics T-630", is
classifiable in subheading 3904.69.5000, HTSUSA, which provides
for polymers of vinyl chloride or of other halogenated olefins,
in primary form, fluoropolymers, other, other [than elastomeric].
The applicable rate of duty is 2.2 cents per kilogram plus 7.7
percent ad valorem.
Since the rate of duty under the classification indicated
above is more than the liquidated rate, you are instructed to
deny the protest in full. A copy of this decision should be sent
to the protestant along with the Form 19 Notice of Action.
Sincerely,
John Durant, Director
Commercial Rulings Division