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HQ 961343




April 5, 2000

CLA-2 RR:CR:GC 961343K

CATEGORY: CLASSIFICATION

TARIFF NO.: 3901.20.00

Port Director
U.S. Customs Service
Hemisphere Center, Routes 1 & 9 South
Room 200
South Newark, NJ 07114

RE: Protest 1001-96-106391; Eljer Manufacturing, Inc; Silane Grafted, Crosslinked Initiated Resin and Masterbatch Catalyst

Dear Port Director:

The following is our response to the referral by your office, dated January 28, 1998, of the request for further review of the above-referenced protest.

FACTS:

The four consumption entries covering the imported merchandise were reported as being liquidated between June 14, 1996 and July 12, 1996, under the provision for polymers of ethylene, in primary forms, polyethylene having a specific gravity of 0.94 or more, in subheading 3901.20.00, Harmonized Tariff Schedule of the United States (HTSUS), with duty at the 1996 general rate of 11.3% ad valorem. A timely protest under 19 U.S.C. 1514 was received on August 22, 1996. The protestant requested reliquidation of the entries under the provision for other ion-exchangers based on polymers of headings 3901 to 3913, in primary form, in subheading 3914.00.60, HTSUS, with duty at the 1996 general rate of 3.9% ad valorem.

In a further submission dated May 19, 1998, counsel for the protestant requested reliquidation in subheading 3901.90.10, HTSUS, as polymers of ethylene, in primary forms: Other: elastomeric, free of duty. In the alternative, reliquidation was requested in subheading 3914.00.60, HTSUS. Technical personnel, the broker and counsel representing the protestant met with Customs on May 28, 1998, to discuss the merits of the protestant’s positions. A submission dated July 27, 1998, further
supported the position for classification in subheading 3901.90.10, HTSUS. Another meeting was held on October 29, 1999, followed by a further submission dated January 19, 2000.

The merchandise at issue, as described in Customs Laboratory Reports 5-97-21103-001, dated July 2, 1997, is composed of two separate components; silane grafted resin in pelletized form, and masterbatch catalyst that are always imported together (19 parts resin and 1 part catalyst) used to manufacture tubing and considered as a set for classification purposes. The first component is a polyethylene polymer containing a silicon constituent. The polyethylene is grafted with vinyltrimethoxysilane. The silane component comprises approximately 2% by weight of the total polymer and the ethylene monomer comprises 98% by weight. The second component is a catalyst masterbatch consisting of polyethylene with dibutyltin diborate (a catalyst for polymeric condensation reactions) as well as antioxidants and stabilizers. The polymer material is essentially that of “a crosslinked polyethylene with a specific gravity (23/23 degrees centigrade) of 0.944, containing less than 5% by weight of silane moner units, which is made directly into tubing following the accelerated crosslinking reaction initiated by the addition of the catalyst masterbatch”. As imported, it is not crosslinked.

ISSUE:

What is the proper classification the silane grafted, crosslink initiated resin and masterbatch catalyst.

LAW AND ANALYSIS:

The classification of imported merchandise under the HTSUS is governed by the principles set forth in the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section and chapter notes and, unless otherwise required, according to the remaining GRI’s, taken in their appropriate order. Accordingly, we first have to determine whether the articles are classified under GRI 1.

Subheading 3914.00.60, HTSUS, provides for other ion-exchangers based on polymers of headings 3901 to 3913, in primary form. An “ion exchange” is defined in the Whittington’s Dictionary of Plastics, Third Edition, page 261, as “a reversible interchange of ions between a solid phase and a liquid phase in which there is no permanent change in the structure of the solid phase”. An “ion exchange” is defined in The Condensed Chemical Dictionary, Seventh Edition, page 509, as “a reversible chemical reaction between a solid (ion exchange) and a fluid mixture (usually an aqueous solution) by means of which ions may be interchanged. The superficial physical structure of the ion exchanger solid is not affected. The customary procedure is to pass the fluid through a bed of the solid, which is granular and porous, and has only a limited capacity for exchange. The process is essentially a batch type in which the ion exchanger, upon nearing exhaustion, is regenerated by the use of inexpensive brines, carbonate solutions, etc, (see zeolites).” The technical information submitted by the protestant states that “the silane grafted polyethylene has already initiated an irreversible cross-linking that would be fully crosslinked within six months if nothing further were done. It is the masterbatch catalyst that permits the crosslinking to occur at an accelerated rate.” Also, the protestant’s technical information indicates that “the silane grafted resin, as imported, is a cross-linked polymer (in the initial stage of irreversible crosslinking), and the small amount of included catalyst is the facilitator for the acceleration of the crosslinking.” The instant merchandise cannot be regenerated, and, based on the preceding, cannot be defined as an ion-exchanger. Accordingly, the merchandise is not classified by virtue of GRI 1 in heading 3914 as an ion-exchanger.

Heading 3901, HTSUS, provides for polymers of ethylene, in primary forms. Subheading 3901.20.00, provides for polymers of ethylene, in primary forms: polyethylene having a specific gravity of 0.94 or more. Subheading 3901.90.10, provides for polymers of ethylene, in primary forms: Other: elastomeric (as that term is defined in Additional U.S. Note 1., Chapter 39, HTSUS). Subheading Note1(a)(1)(2), and (3), Chapter 39, HTSUS, states as follows:

1. Within any one heading of this chapter, polymers (including copolymers) are to be classified according to the following provisions:

(a) Where there is a subheading named "Other" in the same series:

(1) The designation in a subheading of a polymer by the prefix "poly" (e.g., polyethylene and polyamide-6,6) means that the constituent monomer unit or monomer units of the named polymer taken together must contribute 95 percent or more by weight of the total polymer content.

(2) The copolymers named in subheadings 3901.30, 3903.20, 3903.30 and 3904.30 are to be classified in those subheadings, provided that the comonomer units of the named copolymers contribute 95 percent or more by weight of the total polymer content.

3) Chemically modified polymers are to be classified in the subheading named "Other", provided that the chemically modified polymers are not more specifically covered by another subheading.

Since the merchandise consists of 98% by weight of ethylene monomer and 2%
silane, it follows that by virtue of Subchapter Note 1, HTSUS, the merchandise is classifiable by GRI 1 under the provision for polymers of ethylene, in primary forms, polyethylene having a specific gravity of 0.94 or more, in subheading 3901.20.00, HTSUS. We need not consider whether the merchandise meets the term “elastomeric” as defined in Additional U.S. Note 1, HTSUS.

Note 5, Chapter 39, HTSUS, is cited by the protestant to support classification in subheading 3901.90.10, HTSUS. Note 5 states as follows:

Chemically modified polymers, that is, those in which only appendages to the main polymer chain have been changed by chemical reaction, are to be classified in the heading appropriate to the unmodified polymer. This provision does not apply to graft copolymers.

However, the chemical structure of the silane grafted polyethylene does not meet the definition of chemically modified polymers. When the silane is added to the polymer, there are no appendages present in the polymer to be chemically attacked. The silane group grafts onto the ethylene polymer and it in itself becomes the appendage.

HOLDING:

The merchandise consisting of two components imported together in direct weight proportions (95% silane grafted polyethylene to 5% catalyst masterbatch) used to manufacture extruded crosslinked polyethylene tubing, is classified under the provision for polymers of ethylene, in primary forms, polyethylene having a specific gravity of 0.94 or more, in subheading 3901.20.00, HTSUS.

You are directed to deny the protest in full.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision and any reliquidations of entries in accordance with this decision must be accomplished prior thereto.

Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel, and to the general public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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