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HQ 964476

January 12, 2001

CLA-2 RR:CR:GC 964476 AM


TARIFF NO.: 3904.69.10

Port Director
U.S. Customs Service
Building #77
Jamaica, New York 11430

RE: Protest 1001-00-102251; Dai-El Perfluor GA-15

Dear Port Director:

This is in regard to protest 1001-00-102251, timely filed on May 17, 2000, concerning your classification of Dai-El Perfluor GA-15 (GA-15) under the Harmonized Tariff Schedule of the United States (HTSUS). In preparing this decision, consideration was given to the original protest and supplemental submissions dated December 6 and December 12, 2000, from counsel for the protestant.


GA-15 is a fluoropolymer imported from Japan, used in the domestic manufacture of specialty O-rings that are supplied to the aerospace, oil and superconductor industries. GA-15 is composed of the monomers tetrafluoroethylene (CAS No. 116-14-3), perfluoro (2,5-dimethyl-3, 6-dioxanonane vinyl ether)(CAS No. 2599-84-0) and perfluoro (6,6-dihydro-6-iodo-3-oxa-1-hexane)(CAS No. 106108-22-9). No single monomer constitutes more than 95% of the total polymer content of GA-15. To manufacture GA-15, the three ingredient monomers and an emulsifier are poured into a tank containing water. The reaction between the three monomers and the emulsifier causes the monomers to polymerize. The polymerized particles coagulate into small grains which settle onto the floor of the tank and form into a slab. Once all the particles have settled, the slab is removed from the tank and is subjected to a heating process to dry the slab. The slabs are generally rectangular, approximately 12 inches by 8 inches by 1/2 inch thick. However, the thickness varies giving the slabs a slightly curled or wavy appearance. The bottom of a slab of GA-15 is smooth, from being in contact with the bottom of the tank, while the top of a slab is very porous and granular. Although irregularly shaped, each slab weighs exactly 500 grams. These slabs constitute GA-15 as imported. Lab report #2-2000-30112, dated July 24, 2000, confirms that GA-15 dumbbell shaped test specimens meet the requirements of Chapter 39, Additional U.S. Note 1 of the HTSUS for classification as an "elastomeric" plastic material.

After entry, GA-15 is used as a component material in the manufacture of O-ring seals. GA-15 is compounded with two other ingredients, a co-agent, triallylisocynuarete, and a cross-linker, perhexa 2.5B=2,5-bis(t-butylperoxy)hexane. The compounded material is molded into the shape of O-rings through the application of pressure and heat. The rings are then oven-cured at a high temperature for four hours.

The merchandise was entered on April 6, 1999, under subheading 3904.69.50, HTSUS, as "[P]olymers of vinyl chloride or of other halogenated olefins, in primary forms: [F]luoropolymers: [O]ther: [O]ther." The entry was liquidated on February 18, 2000, under subheading 3921.19.00, HTSUS, as "[O]ther plates, sheets, film, foil and strip, of plastics: [C]ellular: [O]f other plastics. After discovering the elastomeric properties of the substance, a protest was timely filed on May 17, 2000, claiming correct classification under subheading 3904.69.10, HTSUS, the provision for "[P]olymers of vinyl chloride or of other halogenated olefins, in primary forms: [F]luoropolymers: [O]ther: [E]lastomeric."


Whether GA-15 is classified in subheading 3904.69.10, HTSUS, as "[P]olymers of vinyl chloride or of other halogenated olefins, in primary forms: [F]luoropolymers: [O]ther: [E]lastomeric, or under subheading 3921.19.00, HTSUS, as "[O]ther plates, sheets, film, foil and strip, of plastics: [C]ellular: [O]f other plastics.


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 that 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 HTSUS. See, T.D. 8980, 54 Fed. Reg. 35127 (August 23, 1989).

The following headings and subheadings are relevant to the classification of this product:

3904 Polymers of vinyl chloride or of other halogenated olefins, in primary forms: Fluoropolymers:

3904.69 Other: [than Polytetrafluoroethylene]

3904.69.10 Elastomeric

3921 Other plates, sheets, film, foil and strip, of plastics: Cellular:

3921.19.00 Of other plastics

Chapter note 6 to Chapter 39 defines the expression "primary forms," in pertinent part, as "(b) [B]locks of irregular shape, lumps, powders (including molding powders), granules, flakes and similar bulk forms." The ENs to Chapter 39 further state that "[B]locks of regular geometric shape are not primary forms and are covered by the expression "plates, sheets, film, foil and strip." Chapter note 10 to Chapter 39 explains that "plates, sheets, film, foil and strip" applies only to plates, sheets, film, foil and strip (other than those of chapter 54) and to blocks of regular geometric shape, whether or not printed or otherwise surface-worked, uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use)." The ENs further state that "[S]uch plates, sheets, etc., whether or not surface-worked (including squares and other rectangles cut therefrom), with ground edges, drilled, milled, hemmed, twisted, framed or otherwise worked or cut into shapes other than rectangular (including square), are generally classified in headings 39.18, 39.19 or 39.22 to 39.26."

GA-15 is both an "elastomeric fluropolymer" and a "cellular plastic." The difference in the headings lies in whether or not GA-15 arrives in "primary form" or as a "sheet." While the GA-15 slab does have fairly uniform dimensions, the thickness of the slab varies. Given the manufacturing process where the polymer is polymerized and collects on the bottom of a tank as opposed to being carefully formed, pressed, cut, ground, milled, framed, etc., the slab can be considered a block of irregular shape. Therefore, GA-15 is imported in primary form.


GA-15 is classified in subheading 3904.69.10, HTSUS, as "[P]olymers of vinyl chloride or of other halogenated olefins, in primary forms: [F]luoropolymers: [O]ther: [E]lastomeric. The protest is ALLOWED.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, 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.gov, by means of the Freedom of Information Act, and other methods of public distribution.


John Durant, Director
Commercial Rulings Division

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