Classification of VICTREX® PEEK™ polymer

HQ 968172 June 23, 2006 CLA-2 RR:CTF:TCM 968172 BtB CATEGORY: Classification TARIFF NO.: 3911.90.2500 Mr. J. W. Brown Danzas AEI Drawback Services 1718 Fry Road Suite 240 Houston, TX 77084 Re: Classification of VICTREX® PEEK™ polymer Dear Mr. Brown: This is in reply to your letter dated March 29, 2006, to the Duty and Refund Determination Branch within the Office of Regulations and Rulings (“ORR”), on behalf of DL Trading, L.L.C. (“DL Trading”), submitted pursuant to 19 C.F.R. §177, requesting the classification under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”) of VICTREX® PEEK™ polymer. As your request relates to classification, your request was forwarded to the Tariff Classification and Marking Branch within ORR for a reply. FACTS: VICTREX® PEEK™ polymer is a linear aromatic thermoplastic polymer in semi-crystalline form consisting primarily of oxy-1, 4-phenyleneoxy-1, 4-phenylene-carbonyl-1, 4-phenylene monomer with an average of at least 5 monomer units. It is available in pellet and powder form. The pellets are used for injection molding, extrusion, monofilament and wire coating operations. The powder is used for extrusion compounding, coating processes and compression molding. VICTREX® PEEK™ polymer is made in England. In your request letter, you stated that DL Trading believes that the classification of VICTREX® PEEK™ polymer is subheading 3911.90.2500, HTSUSA, which 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: Other: Containing monomer units which are aromatic or modified aromatic, or which are obtained, derived or manufactured in whole or in part therefrom: Thermoplastic: Other.” With your request letter, you included an opinion letter from your customs consultant (to DL Trading) dated August 20, 1999, in which the consultant states that VICTREX® PEEK™ is classified in subheading 3911.90.2500, HTSUSA. ISSUE: What is the classification of VICTREX® PEEK™ polymer? LAW AND ANALYSIS: Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." If the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied, in order. The Harmonized Commodity Description and Coding System Explanatory Notes (“EN”) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989). GRI 1 states that in order to determine a product's proper classification, one must first look to the heading and section or chapter notes, and then inquire as to the relevant subheading. See Orlando Food Corp. v. United States, 140 F.3d 1437, 1440 (Fed. Cir. 1998). In this case, Note 3 and Note 6 to Chapter 39, HTSUSA, are relevant to the classification of VICTREX® PEEK™ polymer at the heading level. Note 3 to Chapter 39, HTSUSA, states, in pertinent part, that, “[h]eadings 3901 to 3911 apply only to goods of a kind produced by chemical synthesis, falling in the following categories: … (c) Other synthetic polymers with an average of at least five monomer units.” VICTREX® PEEK™ polymer is specified by Note 3(c) to Chapter 39, HTSUSA, as it is a synthetic polymer produced by chemical synthesis with an average of at least five monomer units. Note 6 to Chapter 39, HTSUSA, is also relevant to the classification of VICTREX® PEEK™ polymer at the heading level. Note 6 to Chapter 39, HTSUSA, states, in pertinent part, that, “[i]n headings 3901 to 3914, the expression ‘primary forms’ applies only to the following forms: … (b) Blocks of irregular shape, lumps, powders (including molding powders), granules, flakes and similar bulk forms.” As VICTREX® PEEK™ polymer is in pellet or powder form, it falls within the scope of Note 6(b), HTSUSA, and accordingly is in “primary form.” As stated above, 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.” VICTREX® PEEK™ polymer is specified in Note 3 to Chapter 39, HTSUSA, and is in primary form. The polymer is not elsewhere specified or included. Consequently, the product is classified in heading 3911, HTSUSA. At the 6-digit level, VICTREX® PEEK™ polymer is provided for by 3911.90 (“Other”). At the 8-digit level, the product is provided for by 3911.90.25 (“Other: Containing monomer units which are aromatic or modified aromatic, or which are obtained, derived or manufactured in whole or in part therefrom: Thermoplastic: Other”). The applicable statistical suffix (9 and 10-digit level) is “00,” the only available statistical suffix. DL Trading (and its customs consultant) is correct that the classification of VICTREX® PEEK™ polymer is subheading 3911.90.2500, HTSUSA. HOLDING: VICTREX® PEEK™ polymer (in pellet or powder form) is classified in subheading 3911.90.2500, HTSUSA, which 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: Other: Other: Containing monomer units which are aromatic or modified aromatic, or which are obtained, derived or manufactured in whole or in part therefrom: Thermoplastic: Other.” The applicable column one general duty rate under the 2006 HTSUSA is 6.1% per kilogram. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the world wide web at www.usitc.gov. This merchandise may be subject to the requirements of the Toxic Substances Control Act (“TSCA”) administered by the U.S. Environmental Protection Agency. You may contact them by mail at 1200 Pennsylvania Avenue, NW, Mail Code 70480, Washington, DC 20460, or by telephone at (202) 554-1404. Sincerely, Gail A. Hamill, Chief Tariff Classification and Marking Branch