CLA-2 RR:CR:GC 962216 MGM
Port Director
U.S. Customs Service
200 E. Bay St.
Charleston, SC 29401
Re: Protest 1601-98-100072; “THV 500” Fluoropolymer
Dear Port Director:
This is our decision on protest 1601-98-100072, concerning your classification of “THV 500” fluoropolymer under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The protestant states that “THV 500" is a flexible, transparent fluoroplastic. Its composition by weight is 60% tetrafluoroethylene, 18% hexafluoropropylene, and 22% vinylidene fluoride monomers. Customs Laboratory Report 2-1999-30074, dated December 15, 1998, determined that “THV 500,” after being stretched to twice its original length, will return to less than 150% of its original length within 5 minutes. “THV 500” is sold in primary forms and can be used to prepare molded parts and extruded films, tubes, profiles, and wire coatings.
The entries whose classification is here protested were made May through August 1997, and liquidated April through June, 1998. A protest was timely filed July 8, 1998.
ISSUE:
What is the classification of “THV 500” fluoropolymer?
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 which 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 relative 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 heading is relevant to the classification of this product:
3904 Polymers of vinyl chloride or of other halogenated olefins, in primary forms:
Fluoropolymers
3904.61.00 Polytetrafluoroethylene (PTFE)
3904.69 Other
3904.69.10 Elastomeric
3904.69.50 Other
Customs classified this merchandise in subheading 3904.69.50, HTSUS, as a non-elastomeric fluoropolymer other than polytetrafluoroethylene. The protestant argues that it should be classified in subheading 3904.69.10, HTSUS, as an elastomeric fluoropolymer other than polytetrafluoroethylene.
Heading 3904 encompasses polymers of halogenated olefins. An “olefin,” or alkene, is an unsaturated hydrocarbon having one or more double bonds. Hawley, The Condensed Chemical Dictionary, 10th ed.; Daintith, A Dictionary of Chemistry, 3rd ed. An olefin is “halogenated” after one of the halogen elements (fluorine, chlorine, bromine, iodine, astatine) has been incorporated into its structure. Here, the three monomers of THV 500, tetrafluoroethylene, hexafluoropropylene, and vinylidene fluoride, each contain fluorine. THV 500 is therefore a polymer of halogenated olefins, more specifically, a fluorpolymer.
THV 500 is a copolymer, that is, a polymer in which no single monomer contributes 95 % or more by weight to the total polymer content. Note 4, Chapter 39, HTSUS. Within a heading, classification of copolymers is governed by Subheading Note 1 to Chapter 39. Further, classification within the “Fluoropolymer” subheading is governed by Subheading Note 1 (a) because there is an “other,” or residual provision. This Note states that in order for a polymer to fall within a subheading designated by the prefix “poly,” it must consist of 95% or more, by weight, of the named monomer. Subheading Note 1(a)(1). Here THV is less than 95% tetrafluoroethylene by weight and is excluded from subheading 3904.61.00, HTSUS. Subheading Note 1(a)(4) directs that merchandise should be classified in the provision, “among the remaining subheadings in the series,” which covers polymers of that monomer which predominates by weight. As the residual provision, subheading 3904.69, HTSUS, is the only remaining subheading in the fluoropolymer series, the merchandise falls within this provision.
Within subheading 3904.69, HTSUS, are two eight-digit subheadings, “elastomeric” and “other” than elastomeric. The term “elastomeric” is defined as follows:
For the purposes of this chapter, the term “elastomeric” means a plastics 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.
Additional U.S. Note 1, Chapter 39. Customs initial laboratory analysis of this merchandise indicated that it does not return to within 150% of its original length within 5 minutes after having been stretched. Customs Laboratory Report 3-97-30252-001, dated February 26, 1997. However, further analysis determined that the merchandise does return to within 150% of its original length within 5 minutes after having been stretched to twice its original length. Customs Laboratory Report 2-1999-30074.
HOLDING:
The protest should be allowed. “THV 500” is classified in subheading 3904.69.10, HTSUS.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division