CLA-2 RR:CR:TE 958134 jb
Port Director
U.S. Customs Service
4477 Woodson Rd.
St. Louis, MO 63134
RE: Decision on Application for Further Review of Protest No.
4503-95-100012; carbon fiber precursor; Chapter 55
Dear Sir:
This is a decision on application for further review of a
protest timely filed by Zoltek Corporation, and received by
Customs on March 27, 1995, against your decision regarding the
classification of 100 percent acrylic filaments intended to be
used as a "precursor" material for carbon fiber. All entries
were liquidated on February 24, 1995. Samples were submitted to
this office for examination.
FACTS:
The submitted merchandise in its condition as imported,
consists of a continuous group of 320,000 parallel acrylic
filaments loosely packed into 350 to 400 pound boxes. The group
of parallel strands is laid out in such a way that it is roughly
flat in shape, and approximately 6 inches in width. Based on
information submitted by the Protestant, twenty five feet of the
material is equivalent to about one pound. As such, multiplying
the weight of the box by the length per pound, results in
approximately 8,750 to 10,000 continuous feet of this material
per box.
The U.S. Customs Laboratory report states that the material:
...is a bundle of crimped, white multifilaments with a knot
at one end, is composed of 100 percent by weight acrylic
multifilaments, a type of synthetic man-made filaments.
The Protestant indicates that subsequent to importation, the
material is to be subjected to processes of stabilization,
oxidation and graphitization, resulting in an end product that is
carbon fiber which is 95 percent carbon by weight. Ultimately,
the material that is later oxidized and graphitized in the United
States is used for reinforcement materials in a large variety of
products and construction applications.
At the time of importation the Protestant attempted entry of
the merchandise under heading 6815, HTSUS, which provides for,
articles of stone or of other mineral substances (including
carbon fibers, articles of carbon fibers and articles of peat).
Customs classified the subject merchandise in heading 5402,
HTSUS, which provides for synthetic filament yarn. We note
however, that Customs classification of the subject merchandise
in heading 5402, HTSUS, as synthetic filament yarn, was based on
incomplete information which was provided at the time. The
correct classification of the subject merchandise follows in the
analysis below.
ISSUE:
What is the proper classification for the subject
merchandise?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is in accordance
with the General Rules of Interpretation (GRI). GRI 1 provides
that classification shall be determined according to the rules of
the headings and any relative section or chapter notes, taken in
order. Merchandise that cannot be classified in accordance with
GRI 1 is to be classified in accordance with subsequent GRI.
The subject merchandise, in its imported condition, consists
of 100 percent acrylic with a small amount of methylacrylate and
other materials added to facilitate the carbonization process
which occurs after importation. The composition of the subject
acrylic filament, in purely chemical terms, is noted as CH2=CH-CðN. Calculating based on atomic weights of 12 for carbon (C), 1
for hydrogen (H), and 14 for nitrogen (N), results in 68 percent
of the weight of this polymer attributed to the presence of
carbon atoms. However, the carbon in this material does not
exist as an independent element; it exists only as part of the
acrylic polymer molecules which comprise the formula CH2=CH-CðN.
As such, the Protestant's belief that the imported acrylic
filament has an "essential character" of carbon is erroneous.
Determinations of "essential character" for materials of this
sort are properly made at the molecular level, not at the atomic
level, as the Protestant suggests. Carbon atoms behave far
differently as parts of acrylic molecules (or other polymers, as
is the case here), than as independent atoms. A polymer
containing carbon differs from pure carbon in virtually all
physical characteristics, as for example, appearance, melting
point, and light absorption. As such, the subject merchandise
which simply contains carbon as part of its molecular
composition, can in no way be compared to elemental carbon.
An analysis such as that put forth by the Protestant, that
is, premised on essential character at the atomic level, would
lead to absurd results. This principle would have to be extended
to all man-made fibers, whether synthetic or artificial, because
carbon is the element that predominates by molecular weight in
virtually all of the various polymers that make up the different
types of man-made fibers. It is a basic tenet of Customs law
that classification is based on condition as imported. The
subject merchandise is still essentially acrylic by nature, it
will not become essentially carbon by nature until later when the
graphitization process breaks the chemical bonds and removes the
hydrogen and nitrogen from the molecules. Thus, the
classification of this merchandise is based on its nature as an
"acrylic" filament.
Heading 5501, HTSUS, provides for synthetic filament tow.
The Explanatory Notes to the Harmonized Commodity Description and
Coding System (EN) to that heading state:
This heading covers synthetic filament tow produced as
described in the General Explanatory Note to this Chapter,
only if it meets the following specifications (see also
Chapter Note 1):
(A) The tow must exceed 2 m in length.
(B) The tow must be untwisted or be twisted less than 5
turns per metre.
(C) Each filament must measure less than 67 decitex.
(D) The tow must have been drawn, i.e., it must be
incapable of being stretched by more than 100 percent
of its length.
(E) The total measurement of the tow must exceed 20,000
decitex.
Chapter Note 1 states:
Headings 5501 and 5502 apply only to man-made filament tow,
consisting of parallel filaments of uniform length equal to
the length of the tow, meeting the following specifications:
(a) Length of tow exceeding 2 m;
(b) Twist less than 5 turns per meter;
(c) Measuring per filament less than 67 decitex;
(d) Synthetic filament tow only; the tow must be drawn,
that is to say, be incapable of being stretched by more
than 100 percent of its length; and
(e) Total measurement of tow more than 20,000 decitex
Tow of a length not exceeding 2 m is to be classified in
heading 5503 or 5504.
The subject merchandise in its imported condition, is well
over 2 meters in length and is untwisted, thus meeting the terms
of Chapter Note 1 (A),(B), and the EN (a),(b). Based on the
information submitted that one pound of this material is 25 feet
in length, we calculate the linear density of the material to be
approximately 595,000 decitex, which is well over the 20,000
decitex required by Note 1 to chapter 55 (E) and the EN (E).
Dividing the total decitex of 595,000 by the total number of
filaments, which is 320,000, we estimate that each individual
filament has a decitex of less than 2, yielding the very fine
filaments submitted, and thus, meeting the requirements set out
by Note 1 to chapter 55 (C) and the EN (c). Finally, we assume,
based on the fact that these filaments are not-stretchable, that
they have been drawn, thus meeting the requirements set out by
Note 1 to chapter 55(D) and the EN(d). Accordingly, as the
characteristics of the subject merchandise satisfy the criteria
set out by those notes, the merchandise is classifiable as tow of
chapter 55, HTSUS.
The Protestant contends that the subject merchandise cannot
be classified as tow because it is not destined for textile
applications. The terms of the notes however, do not limit the
uses to which this material must be put in order to fit within
the parameters outlined above. Both
Note 1 to chapter 55, HTSUS, and the EN to that heading merely
establish the criteria that qualify a material for classification
as "tow". Thus, whether or not material can be considered "tow"
is not premised on end use but on physical attributes as
enumerated by those notes. Furthermore, classification of this
merchandise as tow is consistent with past Customs rulings which
determined that materials which would not be used to make yarn,
or ultimately used to weave or knit material, were nonetheless
classified as tow in heading 5501, HTSUS. See for example,
Headquarter Ruling (HQ) 083445, dated November 29, 1989, which
classified a material designed to make cigarette filters as "tow"
because the material satisfied all the requirements set out by
the chapter note and EN to heading 5501. Similarly, in HQ
950469, dated September 11, 1992, material intended for use as
brake linings was nonetheless classified as tow in heading 5501,
HTSUS.
As the subject merchandise meets all of the criteria for tow
under heading 5501, HTSUS, there is no need to discuss other
headings. As such, the proper classification for this
merchandise is in subheading 5501.30.0000, HTSUSA, which provides
for synthetic filament tow: acrylic or modacrylic. The
applicable rate of duty at the time of importation was 10 percent
ad valorem.
HOLDING:
The protest should be denied. 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