CLA-2 CO:R:C:F 951726 ALS
District Director of Customs
101 East Main Street
Norfolk, Virginia 23510
RE: Request for Further Review of Protest 1401-92-100054, Dated
April 8, 1992, Concerning Asahi Guard; A Variety of
Formulations of Fluoropolymers, Water or Solvent, Other
Components and Additives Used to Give Textiles a Water and
Oil Repellent or Soil Release Finish
Dear Mr. Murphy:
This ruling is on a protest that was filed against your
decision of December 12, 1991, in the liquidation of entries
covering the referenced items.
FACTS:
The articles under consideration are various emulsions of
fluoropolymers in water or solvent containing other components and
additives. The product is used to give textiles a finish which
make them water and oil repellent or facilitates soil release.
ISSUE:
Are the articles classifiable as a textile finishing agent or
as an emulsion, dispersion or solution of polymers?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI's) taken in order.
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GRI 1 provides that the classification is determined first in
accordance with the terms of the heading and any relative section
and chapter notes. If GRI 1 fails to classify the goods and if
the heading and legal notes do not otherwise require, the remaining
GRI's are applied, taken in order.
The products under considerations are various formulations of
fluoropolymers in water or solvent. According to information
provided by the importer, Asahi Guard is a fluorochemical water
and oil repellent textile finishing agent. It is stated to provide
finished fabrics with greater durability against washing and dry
cleaning than conventional paraffin and silicone agent. The
importer further notes that it can be used for water and oil
repellent finishes or for soil release finishes and that it can be
used on every type of natural or synthetic fiber.
The importer states that the products are textile finishing
agents and should be classified in subheading 3809.90.0000. In
support thereof, the importer referenced the Explanatory Notes
(EN's) to heading 3809 which discuss agents to produce dirt-
repellent finishes, oil-repellents and water-repellent agents.
In reviewing this matter we considered the importer's
arguments, heading 3904 regarding polymers of vinyl chloride or of
other halogenated olefins, in primary forms, and the EN's relative
to headings 3809 and 3904.
We noted that the EN's to heading 3809 provide, in part, for
agents based on polymers and that they reference agents used for
the purposes for which the subject products are used. We also
noted that the exclusionary note to EN 38.09 specifically excludes
emulsions, dispersions or solutions of polymers, specifying that
they are classifiable in heading 32.09 or Chapter 39. That EN also
specifies that heading 3809 covers "a wide range of products and
preparations, of a kind generally used during processing or
finishing of yarns, fabrics,...not specified or included elsewhere
in the Nomenclature (emphasis added)."
We next considered heading 3904. Information initially
submitted by the importer characterized the products as aqueous
emulsions of the fluoropolymers and indicated that these products
were found to be halogenated olefin polymers in primary form other
than polytetrafluoroethylene (PTFE). They were classified in
subheading 3904.68.5000, HTSUSA at liquidation.
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Information submitted by the importer in connection with the
protest/further review indicates that the products, other than
Asahi Guard 1595, are aqueous emulsions of copolymers containing
by weight more than 50 percent perfluoroalkyl acrylates.
Specifically, the Asahi Guard F-95 copolymer also contains dioctyl
maleate, N-methylol acrylamide and vinyl chloride monomeric
constitutes; the Asahi Guard F-15N also contains dioctyl maleate,
N-methylol acrylamide and vinyl chloride monomeric constitutes; and
the Asahi Guard F-62 also contains stearyl acrylate, hydroxy ethyl
acrylate and methacrylate ethylene oxide monomeric constituents.
The additional information states that Asahi Guard 1595 is a
perfluoroalkyl compound combined with a urethane ring.
The products under consideration, except for Asahi Guard 1595,
are aqueous emulsions of copolymers. They are thereby excluded
from classification in chapter 38 by exclusionary note (g) to EN
38.09 and, pursuant to that note, would be classifiable in Chapter
39 or heading 3209. These products meet the definition of a
polymer in primary form pursuant to the legal notes to Chapter 39,
HTSUSA. Since each copolymer consists predominantly by weight of
acrylic monomeric constituents (perfluoroalkylates, N-methylol
acrylamide, stearyl acrylate, hydroxyethyl acrylate), we have
concluded that they should be classified in heading 3906 pursuant
to legal note 4 to chapter 39.
The importer has indicated that the remaining product, Asahi
Guard 1595, is used directly as a textile finishing agent without
further significant processing and may be diluted by the end-user
if necessary. The product is not a solution of a polymer or
copolymer but an aqueous solution of an organic compound. Thus,
the exclusionary note to EN 38.09 is inapplicable to this product.
Accordingly, we have concluded that it may properly be classified
in Chapter 38, HTSUSA.
HOLDING:
Products which are aqueous emulsions of copolymers (Asahi
Guard F-95, Asahi guard F-15N and Asahi Guard F-62) are
classifiable in subheading 3906.90.2000, HTSUSA, and are subject
to a general rate of duty of 6.3 percent ad valorem. The remaining
product, Asahi Guard 1595, which is an aqueous solution of an
organic compound is classifiable in subheading 3809.91.0000,
HTSUSA, and is subject to a general rate of duty of 6 percent ad
valorem.
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Insofar as the rate of duty under the classification indicated
above is less than the liquidated rate, although more than the
claimed rate, you are instructed to allow the protest to the extent
reclassification of the merchandise as indicated above results in
an allowance. Also, insofar as the reclassification of the
merchandise above will result in the same rate of duty as claimed
you are instructed to allow the protest.
A copy of this ruling should be attached to Customs Form 19
and provided to the protestant as part of the notice of action on
the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division