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HQ 086467


July 9, 1990

CLA-2 CO:R:C:G 086467 SLR

CATEGORY: CLASSIFICATION

TARIFF NO.: 3904.69.5000

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.

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."

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

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