HQ 962216

March 23, 1999

CLA-2 RR:CR:GC 962216 MGM

**CATEGORY:** CLASSIFICATION

**TARIFF NO.:** 3904.69.10

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]{.underline}"
> means a plastics material which after cross-linking can be stretched
> at 20C 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