HQ 0951726 - 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 - United States International Trade Commision Rulings

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HQ 951726

June 28, 1993

CLA-2 CO:R:C:F 951726 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3809.91.0000 3906.90.2000

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.

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.

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.

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

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