HQ 955643: Internal Advice Request 86/93; "Acritamer"; sodium polyacrylate powder; Additional U.S. Note 1, Chapter 39; "elastomeric"; Legal Note 1, Chapter 39; "plastics"

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 955643

                          April 18, 1995

CLA-2 R:C:F 955643 EAB

CATEGORY: Classification

TARIFF NO.: 3906.90.5000

District Director
U.S. Customs Service
610 South Canal Street
Chicago, Illinois 60607

Re:  Internal Advice Request 86/93; "Acritamer"; sodium polyacrylate powder; Additional U.S.
     Note 1, Chapter 39; "elastomeric"; Legal Note 1, Chapter 39; "plastics"

Dear District Director:

     This is in response to a request for Internal Advice dated May 8, 1992, submitted on
behalf of R.I.T.A. Corp. ("RITA").

FACTS:

     Pursuant to 19 CFR 177.11(b)(2), RITA has requested a written ruling concerning the
classification under the Harmonized Tariff Schedule of the United States (Annotated)
("HTSUSA") of a  good claimed to be an elastomeric polymer called "Acritamer."

     Customs Laboratory Report of Analysis of a submitted sample of the merchandise in the
condition as imported indicated a powder of sodium polyacrylate.  When liquefied and dried to a
film, sodium polyacrylate is extremely brittle.

ISSUE:

     Whether sodium polyacrylate powder is classifiable as an elastomeric polymer, a plastics
material, or an acrylic polymer.

LAW AND ANALYSIS:

     Merchandise imported into the U.S. is classified under the HTSUSA.  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 otherwise requires, by the Additional U.S. Rules of
Interpretation.  The GRIs and the Additional U.S. Rules of Interpretation are part of the
HTSUSA and are to be considered statutory provisions of law for all purposes.

     Additional U.S. Note 1 to Chapter 39, HTSUSA, defines the term "elastomeric" to mean a
plastics material which, after cross-linking, can be stretched and relaxed to measurable standards
under specified conditions.

     The foregoing test must be applied in the context of the general principle, that
merchandise is classifiable in its condition as imported.

     Whether after importation the subject merchandise is then cross-linked to become
stretchable and retractive is a premature consideration, as the merchandise, being a powder in its
condition as imported, is not "elastomeric."

     Not all polymers are "plastics materials."  Only "those materials of headings 3901 to 3914
which are or have been capable, either at the moment of polymerization or at some subsequent
state, of being formed under external influence . . . into shapes which are retained on the removal
of the external influence" are "plastics" as that term is meant.  See Legal Note 1, Chapter 39,
HTSUSA.

     We find that he extreme brittleness of the sodium polyacrylate film takes it beyond the
scope of the expression "plastics."

HOLDING:

     Sodium polyacrylate powder is classifiable under subheading 3906.90.5000, HTSUSA, a
provision for "Acrylic polymers in primary forms: Other: Other: Other."

     Merchandise entered in 1992 under the foregoing provision was dutiable at the column
one general rate of 4.2 percent ad valorem.

     This decision should be mailed by your office to the internal advice requester no later than
60 days from the date of this letter.  On that date, the Office of Regulations and Rulings will take
steps to make the decision available to Customs personnel via the Customs Rulings Module in
ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other
public access channels.

                            Sincerely,




                            John Durant, Director
                            Commercial Rulings Division