CLA-2 CO:R:C:T 950469 PR
John P. Donohue, Esquire
Donahue and Donahue
421 Chestnut Street
Philadelphia, PA. 19106
RE: Classification of Carbonized (Oxidized) Polyacrylonitrile
Tow; Parts of Aircraft; Articles vs. Material; Acrylic vs.
Carbon Fibers
Dear Mr. Donohue
This is in reply to your letters of August 5 and September
15, 1992, on behalf of R. K. Fibers, Inc., concerning the tariff
classification of Panox B . Our ruling on the matter follows.
FACTS:
According to the importer's representative, Panox B is a
trade name for oxidized polyacrylonitrile tow, which is made to
aircraft industry specifications. It is imported on spools or in
boxes as continuous filament fibrous tow in quantities of between
250 and 380 pound units. All of the merchandise is sold for use
in the manufacture of carbon disc brakes for commercial aircraft.
The untreated polyacrylonitrile tow is purchased in England by RK
Carbon Fibers Ltd. and then subjected to a six hour preoxidation
process involving stretching and heating the material in the
presence of oxygen. This results in a chemical change--the
polyacrylonitrile molecules develop cross-links. The character
and appearance of the fibers are changed. After importation, the
tow is needled into a dense, heavy-duty felt which is heated in
a high temperature oven in the presence of methane gas. The
methane converts to carbon, which builds up in the felt material,
resulting in a solid block of graphite. The solid block is then
processed into brake linings. -2-
The importer believes that the merchandise is classifiable
under the provision for parts of aircraft undercarriages, in
subheading 8803.20.0010, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), or, in the alternative, under the
provision for friction material of mineral substances in the form
of brake linings and pads, in subheading 6813.10.0010, HTSUSA.
The merchandise was apparently classified by Customs at the port
of Houston under the provision for acrylic or modacrylic tow, in
subheading 5501.30.0000, HTSUSA.
ISSUE:
Two issues are presented--whether the merchandise has been
sufficiently advanced in condition to be classifiable as either
a part of an aircraft or as brake friction material; and, if not,
whether the merchandise has been processed to the point that it
has ceased to be classifiable as acrylic or modacrylic fibers.
LAW AND ANALYSIS:
Imported goods are classifiable according to the General
Rules of Interpretation (GRI's) of the Harmonized Tariff Schedule
of the United States (HTSUSA). GRI 1 provides that for legal
purposes, classification shall be determined according to the
terms of the headings in the tariff and according to any
pertinent section or chapter notes. After considering GRI 2(a),
it appears that GRI 1 governs the classification of the subject
merchandise.
GRI 2(a), provides, in pertinent part:
Any reference in a heading to an article shall be taken
to include a reference to that article incomplete or
unfinished, provided that, as presented, the incomplete
or unfinished article has the essential character of
the complete or finished article.
PAN tow is material that is not identifiable in its imported
condition as brake linings and cannot be utilized for that
purpose without substantial additional processing. It possesses
neither the form nor the requisite properties to be suitable for
use as aircraft brake linings. Accordingly, PAN tow does not
have the essential character of complete or finished brake
linings and cannot be classified as if it were complete or
unfinished brake linings (in either subheading 8803.20.0010, or
in subheading 6813.10.0010).
-3-
Pursuant to GRI 1, unless the PAN tow is considered to have
been carbonized to the point that it has become a carbon article
and ceases to be man-made fibers, it is classifiable under
heading 5501, as synthetic filament tow. That heading provides:
5501 Synthetic filament tow:
5501.10.0000 Of nylon or other polyamides.........
5501.20.0000 Of polyesters.......................
5501.30.0000 Of acrylic or modacrylic............
5501.90.0000 Other...............................
Section 303.7 of the Federal Trade Commission's (FTC)
regulations (16 CFR 303.7) contains definitions of acrylic and
modacrylic fibers. Acrylic and modacrylic are terms that refer
to the same molecular structure, but which depend on a
quantitative analysis of the material. They are defined as
followed:
(a) Acrylic. A manufactured fiber in which the fiber-forming substance is any long chain polymer composed of
at least 85 percent by weight of acrylonitrile units
* * *
(b) Modacrylic. A manufactured fiber in which the
fiber-forming substance is any long chain synthetic
polymer composed of less than 85 percent but at least
35 percent by weight of acrylonitrile units.
A Customs laboratory examined the submitted sample and
determined that it did not have the characteristics of acrylic or
modacrylic fibers. When asked whether the sample complied with
the definitions in 16 CFR 303.7, the laboratory reported after
extensive evaluation of the sample that it contains no more than
28 percent acrylonitrile units. Therefore, the submitted sample
of PAN tow does not qualify as either acrylic or modacrylic
fibers as those terms are defined by the FTC.
It is Customs view that in this area, the FTC regulatory
definitions should be regarded as extremely strong, if not
conclusive, evidence of applicable trade designations.
Accordingly, in the absence of persuasive evidence to the
contrary, Customs will consider the definitions in 16 CFR 303.7
as establishing (or representing) the commercial designation of
the terms "acrylic" and "modacrylic". -4-
Our National Import Specialist has advised that Customs has
generally distinguished man-made fibers from carbon fibers by the
amount of carbonization that has taken place. According to the
Hoechst Celanese Dictionary of Fiber and Textile Technology (1990
ed.), a carbon fiber is
A high tensile fiber or whisker made by heating rayon
or polyacrylonitrile fibers or petroleum residues to
appropriate temperatures. Fibers may be 7 to 8 microns
in diameter and are more than 90% carbonized.
Since PAN tow does not qualify as being either acrylic or
modacrylic fibers and it is clearly less than 90 percent
carbonized, the submitted sample is classifiable as synthetic
fiber tow, but not as any of the specifically named fibers in
heading 5501.
HOLDING:
Merchandise as represented by the submitted sample is
classifiable in the basket provision for other synthetic filament
tow, in subheading 5501.90.0000, HTSUSA, with duty, as a product
of the United Kingdom, at the rate of 10 percent at valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division