HS Code Classification of Polyol Isocyanate Polyurethanes US Customs: Customs Tax Consultant Kenya

Mondur MR in the form of a dark brown liquid, is polymethylene polyphenyl isocyanate (polymeric isocyanate), a chemically modified amino-resin prepolymer. Mondur MR is used in the formulation of rigid polyester and polyether urethane foams. It is also used in adhesive applications calling for urethane bonding agents. The applicable subheading for the Mondur MR will be 3909.30.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for other amino-resins.

 

NY 855515

OCT 05 1990
CLA-2-39:S:N:N1:238 855515

Ms. Karen K. Davis
Mobay Corporation
Mobay Road
Pittsburgh. PA 15205-9741

RE: The tariff classification of Mondur MR from West Germany.

Dear Ms. davis:

In your letter dated July 25, 1990 you requested a tariff classification ruling.

Mondur MR in the form of a dark brown liquid, is polymethylene polyphenyl isocyanate (polymeric isocyanate), a chemically modified amino-resin prepolymer. Mondur MR is used in the formulation of rigid polyester and polyether urethane foams. It is also used in adhesive applications calling for urethane bonding agents. The applicable subheading for the Mondur MR will be 3909.30.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for other amino-resins. The rate of duty will be 6.9 percent ad valorem

This merchandise may be subject to the regulations of the Environmental Protection Agency, Office of Pesticides and Toxic Substances. You may contact them at 402 M Street, S.W., Washington, D.C. 20460, telephone number (800) 424-9086. .

This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177).

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

Jean F. Maguire
Area Director
New York Seaport

CLA-2-39:OT:RR:NC:N2:237

Ms. Vanessa Rambo
Bostik, Inc.
11320 Watertown Plank Road
Wauwatosa, WI 53226

RE: Tariff classification of various polyurethane, isocyanate and polyester resins from France.

Dear Ms. Rambo:

In your letter dated November 3, 2010 you requested a tariff classification ruling for five polymer resins. You provided MSDS sheets and percent by weight component breakdowns.

EPS179 consists of 60% polyurethane resin dispersed in 40% ethyl acetate solvent.

EPS74 consists of 63% proprietary polymer dispersed in 36% ethyl acetate solvent.

HZ1 consists of 100% methylene diphenyl isocyanate resin (MDI).

GL3334 consists of 65% polyester resin dispersed in 35% ethyl acetate solvent.

EPS988 consists of 70% polyester resin dispersed in 30% acetone solvent.

The applicable subheading for EPS179 polyurethane resin dispersed in solvent will be 3909.50.5000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for: Polyurethanes: Other, in primary forms. The rate of duty will be 6.3% ad valorem.

The applicable subheading for HZ1 methylene diphenyl isocyanate resin (MDI) will be 3909.30.0000, Harmonized Tariff Schedule of the United States HTSUS, which provides for: Other amino resins, in primary forms. The rate of duty will be 6.5% ad valorem.

The applicable subheading for GL3334 and EPS988 polyester resins dispersed in solvents will be 3907.99.0150, HTSUS, which provides for: Other polyesters: Other: Other, in primary forms. The rate of duty will be 6.5% ad valorem.

We are returning your request for a ruling on EPS74 because we need the chemical name or class of the proprietary polymer in order to issue a ruling. When this information is available, you may resubmit your request, along with all of the material that we have returned to you, and mail your request to: U.S. Customs and Border Protection, Customs Information Exchange, 10th Floor, One Penn Plaza, New York, NY 10119, attn: Binding Rulings Section. Since your request was submitted electronically and the information required does not involve sending a sample, you can resubmit your request and the additional information electronically.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

This merchandise may be subject to the requirements of the Toxic Substances Control Act (TSCA), which are administered by the U. S. Environmental Protection Agency. Information on the TSCA can be obtained by contacting the EPA at 1200 Pennsylvania Avenue, N.W., Washington, D.C. 20460, by calling the TSCA Assistance Line at (202) 554-1404, by Fax at (202) 554-5603, by e-mail to: tsca-hotline@epa.gov or by visiting their website at www.epa.gov.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Frank Cantone at (646) 733-3038.

Sincerely,

Robert B. Swierupski
Director
National Commodity Specialist Division

 

DRA-4 RR:CR:DR 230363 RDC

Port Director
Customs and Border Protection
Houston Service Port
2350 N Sam Houston Parkway East
Suite 1000
Houston, Texas 77032-3126
Att: Deidra Golden

RE: Protest number 5301-03-100136; Arco Chemical Co.; Denial of drawback claim; 19 USC § 1313(p); 19 USC § 1514; same kind and quality; polyether polyols; classification; commercial interchangeability.

Dear Sir or Madam:

Protest number 5301-03-100136 was forwarded to this office for further review on February 27, 2004. We have considered the evidence provided and the points raised by your office and the Protestant. Our decision follows.

FACTS:

The Protestant, Arco Chemical Co., (Arco), protests the denial of drawback claim AA6-xxxxx56-6. The drawback entry is filed on a CF 7539, “Drawback Entry Covering Same Condition Merchandise,” dated December 1, 1997, and the declaration stating that the merchandise was substituted is checked and signed. Included with the claim was a cover letter from the broker stating that the claim is a “1313J(P)” and “Same Condition Merchandise” claim. This letter also states that the imports and exports are “Polyether Polyols.” The claim was received by CBP on December 2, 1997.

On an attachment to the protested drawback claim that is labeled “Exporter[‘]s Chronological Summary By Date,” Arco describes the four exports. The exported articles are described as “polyethers” classified at 3907.20.00, HTSUS, and exported on April 3 and April 24, 1997. The exporting carrier and quantity are stated. The “part / model / style number is the 8-digit HTSUS number. In another attachment labeled “CF-7539 Continuation Sheet by Part # / Product Code,” dated December 1, 1997, the imported articles are described by entry number, import date, port code, reference number (which appears to be the name of a vessel), part number / product code (which appears to be the HTSUS subheading 3907.20.00), quantity claimed, value per unit, duty rate, duty paid per unit and drawback claimed. The imported articles are covered by 21 entries with import dates between November 23, 1996, and April 18, 1997. Total drawback claimed is 100 percent of the duty paid, $254,096.03.

Also provided are three letters from a customs broker addressed to CBP. One letter dated November 18, 1997, is addressed to CBP in Newark, New Jersey. This letter references 8 of the entries included on Arco’s “CF-7539 Continuation Sheet” and advises that because of “clerical error” the goods covered by these entries were classified under subheading 3903.90.50.00, HTSUS, at entry, but the correct classification should have been 3907.20.00.00, HTSUS. The entries referred to are 66-3, 65-6, 68-7, 55-6, 93-3, 00-8, 80-3, and 65-4. According to ACS, entry numbers 66-3, 65-6, 68-7, and 55-6 liquidated on April 11, 1997, March 14, 1997, May 9, 1997, and May 2, 1997, respectively, with the goods classified under subheading 3903.90.50, HTSUS.

A second letter dated November 18, 1997, is addressed to CBP in Houston and refers to five entries, numbers 63-9, 65-4, 15-3, 14-6, and 57-7, that are included on the attachment labeled “CF-7539 Continuation Sheet by Part # / Product Code.” This letter also states that there was an error in the classification of the goods at entry and the correct classification is 3907.20.00, HTSUS. According to ACS, entry numbers 63-9 and 14-6 liquidated July 7, 1997, and May 30, 1997, respectively, with the goods classified under subheading 3903.90.50, HTSUS.

The third letter, dated November 5, 1997, refers to entry number 37-7, and states that, for lines one and two, a clerical error caused the goods to be incorrectly classified at entry. The correct classification should have been 3907.20.00, HTSUS. The letter requests that the entry be reliquidated and excess duty paid in the amount of $337.41 be refunded. According to ACS, entry number 37-7 liquidated once, on February 2, 1998, with both lines of goods classified under subheading 3903.90.50, HTSUS.

Included with the file are facsimile copies, dated February 19, 2004, of “Material Safety Data Sheet[s]” for substances called “Arcol® Polyol F-3020” and “Arcol® Polyol 2580.” These substances are described as “Polyether polyols” from Lyondell Chemical Company. There are also “Material Safety Data Sheet[s]” for Arcol® Polyol E-656, Arcol® Polyol E-644 from Arco. This material is also described as “polyether polyols.”

According to ACS the protested drawback entry was liquidated on January 10, 2003, with zero drawback allowed. This claim was denied by the Houston drawback Center, (Houston), because the designated qualified articles and the exported articles were not classified under the same 8-digit Harmonized Tariff Schedule of the United States, (HTSUS), tariff classification number. The instant Protest was received on April 10, 2003, and a “supplemental legal argument” was received by CBP on December 18, 2003. On February 11, 2004, a representative of Houston requested further information from the Protestant’s broker to establish commercial interchangeability. No information was provided. The Protest was forwarded for further review on February 27, 2004.

ISSUE:

Whether designated qualified articles liquidated under subheading 3903.90.50, HTSUS (1997), and described as “polyether polyols,” and exported articles described as polyether polyols classified under 3907.20.00, HTSUS (1997), are of the “same kind and quality” as required by 19 U.S.C. § 1313(p)(3)(B)?

LAW AND ANALYSIS:

We note initially that the instant Protest was timely filed, i.e., within 90 days of the refusal to pay the drawback claim (19 U.S.C. § 1514(c)(3)(B)). Under 19 U.S.C. § 1514 “decisions of the Customs Service, including the legality of all orders and findings entering into the same, as to . . . the refusal to pay a claim for drawback . . .” (§ 1514(a)(6)) are final unless a protest of that decision is filed within 90 days of the decision to deny drawback (§ 1514(c)(3)(B)). The drawback claim was liquidated on January 10, 2003, with zero drawback paid, and this Protest was filed on April 10, 2003.

In its cover letter accompanying the drawback claim Arco describes the imported and exported articles as “polyether polyols.” However, we note at the outset that there is very little evidence, independent of the Protestant’s assertions, from which to determine the nature or identity of the imported and exported articles. There are no entry documents, no bills of lading, no invoices or packing lists to evidence the importations. There are no carrier bills of lading or invoices or manifests provided to substantiate the exports. Essentially, no independent evidence of any kind has been provided to substantiate the drawback claim.

The only documents provided by Arco are the drawback claim and attachments, prepared by Arco’s broker and the “Material Safety Data Sheets.” These Data Sheets are not linked in any way to the imports or exports, their significance is not explained nor related to the instant Protest. Therefore, there is no way to determine what it is they are intended to evince and they are not considered here. Accordingly, we make no determinations as to the nature of the imported and exported articles, but refer to them as “polyether polyols” because the Protestant describes them as such.

Moreover, we note the instant protest is so seriously deficient of legal justification for its argument that it does not meet the requirements of 19 C.F.R. § 174.13, which requires that the justification for the protest “be set forth distinctly and specifically.” The protestant has not provided a recitation of the facts nor conclusions drawn from the facts have been provided. Nor does the Protestant provide the legal framework which supports the facts and events. See XL Specialty Ins. Co. v. United States, Ct. Intl. Trade Slip Op. 2004-61 (June 8, 2004); Koike Aronson, Inc. v. United States, 165 F.3d 906 (Fed. Cir. 1999).

According to the “Attachment to Protest,” drawback entry AA6-xxxxx56-6 claims drawback per 19 U.S.C. § 1313(p). Section 1313(p) of the United States Code (19 U.S.C. §1313(p)) provides for drawback of 100 percent of the duty on certain petroleum derivatives. Under § 1313(p)(1), notwithstanding any other provision of § 1313, if:

(A) an article (referred to in section 1313(p) as the “exported article”) of the same kind an quality (as specifically defined in section 1313(p)) as a qualified article is exported; (B) the requirements set forth in section 1313(p)(2) are met; and (C) a drawback claim is filed regarding the exported article, drawback shall be allowed, in accordance with the provisions of paragraph (4). For purposes of this subsection a “qualified article” per § 1313(p)(3)(A)(i)(II), means an article described in “headings 3901 through 3914,” HTSUS, (among other headings), which is imported and duty-paid (see also 19 C.F.R. §191.172(a)).

For purposes of drawback per 1313(p),

An article, including an imported, manufactured, substituted, or exported article, is of the same kind and quality as the qualified article for which it is substituted under this subsection if it is a product that is commercially interchangeable with or referred to under the same eight-digit classification of the Harmonized Tariff Schedule of the United States as the qualified article . . . .

(19 U.S.C. § 1313(p)(3)(B)). The exported articles here are described on Arco’s “Exporter[‘]s Chronological Summary By Date,” as “polyether polyols” classified at 3907.20.00, HTSUS. CBP records reflect that the designated qualified articles were entered and liquidated under subheading 3903.90.50, HTSUS.

Per § 1313(p)(3)(B), the designated qualified polyether polyols entered under subheading 3903.90.50, HTSUS, would be of the same kind and quality as the exported polyether polyols, for which they are substituted, if the imported polyols are either a product that is commercially interchangeable with, or “referred to under the same eight-digit classification of the HTSUS,” as the exported polyols. Therefore, merchandise that was classified and liquidated under subheading 3903.90.50, HTSUS, would not be the same kind and quality as exported merchandise that was asserted to be classifiable under subheading 3907.20.00, HTSUS, because the merchandise is not “referred to under the same eight-digit classification” as required by § 1313(p)(3)(B).

In its February 19, 2004, Arco argues that “[b]ecause the consumption entries for the imports were not properly reclassified does not negate the eligibility of this claim under 19 U.S.C. §1313(p)(2)(F) . . . . . We disagree. Per 19 U.S.C. § 1514, CBP decisions regarding classification of goods (and other issues) that are not protested within 90 days of liquidation (absent certain actions on the part of the importer or CBP within the specified time limits), are final and binding on all parties, including CBP. (See HRL 966932, March 10, 2004, which held § 1514 makes final CBP decisions as to the classification, among other decisions, for entered goods, unless a protest is filed against that decision in accordance with § 1514(c)).

According to ACS, entry numbers 66-3, 65-6, 68-7, and 55-6 liquidated on April 11, 1997, March 14, 1997, May 9, 1997, and May 2, 1997, respectively, with the goods classified under subheading 3903.90.50, HTSUS. These entries were among those referred to in the November 18, 1997, letter addressed to CBP in Newark, New Jersey, requesting that the goods be reclassified under subheading 3903.90.50, HTSUS. According to ACS, entry numbers 63-9 and 14-6, which were referred to in the November 18, 1997, letter addressed to CBP in Houston, liquidated July 7, 1997, and May 30, 1997, respectively, with the goods classified under subheading 3903.90.50, HTSUS.

However, there is no evidence that CBP ever received the two letters dated November 18, 1997. The letter to Newark is simply addressed “United States Customs Service, Newark NJ, ATTN: Chemical Team,” no street address or zip code is provided. We note that in 1997 the chemical team for the port of Newark was located at 6 World Trade Center, New York, NY and that this letter would have had to be forwarded from Newark to New York. Neither letter is date-stamped as received by CBP nor contain any markings which would lead to the conclusion that they were received. In addition, Houston has no record of receiving this letter or taking action on it. (We note that all records retained by Newark’s chemical team were destroyed on September 11, 2001.)

Representatives from each port stated that if the letters had been received, some response would have been sent to the broker. No such response is mentioned by the Protestant. The Protestant states only that, “Arco made an unsuccessful attempt to correct the [classification of the goods covered by the ]designated import entry . . . .” These two letters are dated more than 90 days after six of the entries were liquidated. Per § 1514, the classification of the goods covered by these entries was final and binding on all parties after 90 days from liquidation elapsed without a valid protest having been filed. We note that since the letters state that the error in classification was due to a “clerical error” Arco had until one year after the date of liquidation to petition for re-liquidation of the entries per 19 U.S.C. § 1520(c)(1) with the goods classified under the correct subheading.

The third letter, dated November 5, 1997, referred to entry number 37-7 which was liquidated on February 2, 1998, with both lines of goods classified under subheading 3903.90.50, HTSUS. Again, the February 2, 1998, letter bears no evidence of ever having been received by CBP and Houston has no record of its receipt. Moreover, the letter requests that the entry be “reliquidated” even though the entry had not yet liquidated at the time the letter is dated. We note that if this letter had been received by CBP before May 2, 1998, it would have been untimely as a protest per § 1514(b)(3)(A) which states that a protest must be filed within 90 days of “but not before notice of liquidation . . . .” Also, a petition for reliquidation per 19 USC § 1520(c)(1) requires the “error, mistake, or inadvertence [to be] brought to the attention of [CBP] within one year after the date of liquidation . . . .”

Accordingly, to the extent that 90 days from the liquidation of the entries comprising the designated qualified articles elapsed without any action taken by the Protestant to prevent the finality of the liquidations per § 1514, the classification of the designated qualified articles was final at subheading 3903.90.50, HTSUS. Consequently, per § 1313(p)(3)(B), the designated qualified polyether polyols liquidated under subheading 3903.90.50, HTSUS, are not of the same kind and quality as the exported polyether polyols, for which they are substituted, because the imported polyols are not “referred to under the same eight-digit classification of the HTSUS,” as the exported polyols.

Section 1313(p)(3)(B), also allows the designated qualified polyether polyols to be deemed of the same kind and quality as the exported polyether polyols, for which they are substituted, if the imported polyols are commercially interchangeable with the exported polyols. The CBP Regulations at 19 C.F.R. § 191.32(c) provide that in determining commercial interchangeability:

Customs shall evaluate the critical properties of the substituted merchandise and in that evaluation factors to be considered include, but are not limited to, Governmental and recognized industrial standards, part numbers, tariff classification and value.

The best evidence of whether those criteria are used in a particular transaction are the claimant’s transaction documents. Underlying purchase and sales contracts, purchase invoices, purchase orders, and inventory records show whether a claimant has followed a particular recognized industry standard, or a governmental standard, or any combination of the two, and whether a claimant uses part numbers to buy, sell, and inventory the merchandise in issue. The purchase and sale documents also provide the best evidence with which to compare relative values. Also, if another criterion is used by the claimant to sort the merchandise, the claimant’s records would show that fact which will enable CBP to follow the Congressional directions.

HRL 230172, February 26, 2004, addressed the commercial interchangeability of imported and domestic polyol for purposes of substitution, unused merchandise drawback under 19 U.S.C. §1313(j)(2). In HRL 230172 we stated, “Polyol is used exclusively in the manufacture of polyurethane foam and has no other commercial application. Polyol is the base factor in the manufacturing process and when combined with other elements in different percentages creates foam of different densities. . . . . Each polyol has different physical and chemical properties and is used to create a specific type of foam. The polyol grade numbers are used to identify the polyols in the importation, exportation, laboratory analysis, and inventory documents.”

With regard to the instant Protest, the qualified article, the imported polyether polyols, is compared to the exported article, polyether polyols. However, there is insufficient evidence to determine commercial interchangeability. This information was requested by letter dated February 11, 2004, but was not provided. As stated above, no independent evidence was provided to even conclude that the imported and exported articles were both polyols. And even if that had been substantiated, there is no evidence of the grade numbers “used to identify the polyols in the importation, exportation, laboratory analysis, and inventory documents” as stated in HRL 230172.

On both the Exporter[‘]s Chronological Summary By Date” and the “CF-7539 Continuation Sheet by Part # / Product Code” the part / model / style number and the “part number / product code” are the asserted classifications, 3907.20.00, HTSUS. Therefore, there are no part numbers to compare. With respect to governmental and recognized industrial standards, if a standard is published and the good is traded in conformance with that standard, it is probable that the imported and exported goods are commercially interchangeable. But, in the instant case no standards are supplied, nor are there any sales documents to evidence how polyether polyols are traded.

With regard to tariff classification, even if § 1514 did not work to make the classification binding, there is insufficient information provided to determine the correct classification of either the imported designated qualified articles or the exported polyether polyols. Finally, the information necessary to calculate the value of the articles is only provided for the imported designated qualified articles. The “CF-7539 Continuation Sheet“ contains the value per unit and the quantity claimed. But, no value information is provided for the exported articles. Consequently, without any evidence for the imported designated articles and the exported articles supporting the determination of commercial interchangeability in each of the characteristics, industrial standards, part numbers, tariff classification and value, no determination of commercial interchangeability can be made. Therefore, the designated qualified articles cannot be said to be of the same kind and quality as the exported articles as required by § 1313(p)(3)(B) and the drawback claim AA6-xxxxx56-6 was properly denied.

HOLDING:

Per 19 U.S.C. § 1313(p)(3)(B), the exported “polyether polyols” classified at 3907.20.00, HTSUS, and the designated qualified “polyether polyols” entered and liquidated under subheading 3903.90.50, HTSUS, and are not of the same kind and quality because they are not classified under the same eight-digit classification of the HTSUS, and there is insufficient information to determine that they are commercially interchangeable.

Therefore, this Protest should be DENIED in full. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

 

CLA-2-39:S:N:N7:238 808925

Ms. Carol Schneiders Satriano
Solvay Performance Chemicals
41 West Putnam Avenue
Greenwich, CT 06830

RE: The tariff classification of “Ixol M 125”, “Ixol B 251”, and “Ixol PF 50” halogenated polyether polyols, in liquid form, from Belgium

Dear Ms. Satriano:

In your letter dated April 3, 1995, you requested a tariff classification ruling.

The three subject products, “Ixol M 125”, “Ixol B 251”, and “Ixol PF 50”, are halogenated polyether polyols, which, you indicate, are used as flame retardants in the manufacture of rigid polyurethane foams. The applicable subheading for all three products will be 3907.20.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for: “Polyacetals, other polyethers and epoxide resins, in primary forms; … : “Other Polyethers.” The rate of duty will be 1.8 cents per kilogram plus 7.57 percent ad valorem.

This merchandise may be subject to the regulations of the Environmental Protection Agency, Office of Pesticides and Toxic Substances. You may contact them at 402 M Street, S.W., Washington, D.C. 20460, telephone number (202) 554-1404), or EPA Region II at (908) 321-6669. This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177).

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

Jean F. Maguire
Area Director
New York Seaport

 

CLA-2-39:S:N:N1-F:238 872123

Mr. Brian Colby
Velco Enterprises, Ltd.
100 Clearbrook Road
Elmsford, NY 10523

RE: The tariff classification of Tercapur G 200 and Tercapur G 600, polyetherpolyols in liquid form, from Belgium.

Dear Mr. Colby:

In your letter dated February 18,1992, resubmitted on March 5, 1992, you requested a tariff classification ruling.

Tercapur G 200 is an amine-based polyether, designed for use in combination with other polyols for the production of semi- rigid polyurethane foams. You state that it can also be used, in certain cases, as a cross-linking agent. The product will be imported in liquid form.

Tercapur G 600 is a 600-molecular weight triol mainly used for the manufacture of polyurethane foams, in combination with other polyols of higher functionality. It is also adapted for the production of semi-rigid foams and elastomers. This product will also be imported in liquid form. The applicable subheading for both products will be 3907.20.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for polyacetals, other polyethers and epoxide resins, in primary forms; polycarbonates, alkyd resins, polyallyl esters and other polyesters, in primary forms: other polyethers. The rate of duty will be 2.2 cents per kilogram plus 7.7 percent ad valorem.

This merchandise may be subject to the regulations of the Environmental Protection Agency, Office of Pesticides and Toxic Substances. You may contact them at 402 M Street, S.W., Washington, D.C. 20460, telephone number (202) 554-1404), or EPA Region II at (908) 321-6669.

This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177). A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

Jean F. Maguire
Area Director
New York Seaport

 

CLA-2-39:OT:RR:NC:N2:237

Dr. Lucio Siano, President
Coim USA, Inc.
286 Mantua Grove Road
West Deptford, NJ 08066-1738

RE: The tariff classification of twelve thermoplastic polyurethane elastomers from Italy. Dear Dr. Siano:

In your letter dated March 21, 2013 you requested a tariff classification. You provided twelve sets of dumbbell samples, compounding recipes and elastomeric stretch and return test results for eleven products, along with Technical Data, Typical Properties and MSDS sheets for our review.

Laripur 8225 and 8025DP are described as polyester based thermoplastic polyurethane elastomers designed for resistance to hydrolysis and improved flexibility at low temperatures. Injection molding applications include sport soles, wheels, masks and technical items. Extrusion applications include hoses, profiles, transmission belts and films.

Laripur 6560, 7560 and 9060EM are described as polyether based thermoplastic polyurethane elastomers designed for flexibility and resistance to hydrolysis, microbiological attack, cold and oxidation. Injection molding applications include ski boots, tags and technical items. Extrusion applications include hoses, profiles and films.

Laripur 6515, 7015 and 5018B are described as polyester based thermoplastic polyurethane elastomers designed for fast processing cycles, flexibility and resistance to abrasion. Injection molding applications include high flexibility soles in the shoe industry.

Laripur 107-93A is described as a polyester based thermoplastic polyurethane elastomer designed for high compression set, resistance to oils and high temperatures. Injection molding applications include heavy-duty hydraulic seals.

Laripur 9020T is described as a polyester based thermoplastic polyurethane elastomer designed for resilience, resistance to tear and abrasion and stability in water, solvents, light and oxidation. Injection molding applications include sport soles, screen elements, wheels and technical items.

Laripur 8040 is described as a polyester based thermoplastic polyurethane elastomer designed for calendering and soluble grades for the production of synthetic leather.

Laripur 2102-90AE is described as a polyester based thermoplastic polyurethane elastomer designed for flexibility with constancy at temperature variations and resistance to abrasion, compression, hydrolysis, oils, fats and solvents. Injection molding applications include watch belts, bellows and technical items.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the HTSUS. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989). EN to Chapter 39.09 (3) Polyurethanes provides: This class includes all polymers produced by the reaction of polyfunctional isocyantes with polyhydroxy compounds, such as, castor oil, butane-1,4-diol, polyether polyols, and polyester polyols. Polyurethanes exist in various forms, of which the most important are the foams, elastomers, and coatings. They are also used as adhesives, molding compounds and fibers. These products are often traded as one part of a multi-component system or set. This group also includes mixtures of polyurethane and unreacted polyfunctional diisocyanate (e.g., toluene diisocyanate). Laripur 8225, 8025DP, 6560, 7560, 9060EM, 6515, 7015, 5018B, 107-93A, 9020T, 8040 and 2102-90AE are thermoplastic polyurethanes produced by the reaction of isocyanates with polyether polyols or polyester polyols.

Additional U.S. Note 1. is relevant to your product and provides: the term “elastomeric” means a plastics material which after cross-linking can be stretched at 20°C 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. Elastomeric plastics may also contain fillers, extenders, pigments or rubber-processing chemicals, whether or not such plastics material, after the addition of such fillers, extenders, pigments or chemicals, can meet the tests specified in the first part of this note. Based on the dumbbell samples, compounding recipes and elastomeric stretch and return test results you provided, Laripur 8225, 8025DP, 6560, 7560, 9060EM, 6515, 7015, 5018B, 107-93A, 9020T, 8040 and 2102-90AE thermoplastic polyurethane elastomers meet the requirements for “elastomeric” in Additional U.S. Note 1.

The applicable subheading for Laripur 8225, 8025DP, 6560, 7560, 9060EM, 6515, 7015, 5018B, 107-93A, 9020T, 8040 and 2102-90AE thermoplastic polyurethane elastomers will be 3909.50.1000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for: Polyurethanes: Elastomeric, in primary forms. The rate of duty will be free.

This merchandise may be subject to the requirements of the Toxic Substances Control Act (TSCA), which are administered by the U. S. Environmental Protection Agency. Information on the TSCA can be obtained by contacting the EPA at 1200 Pennsylvania Avenue, N.W., Washington, D.C. 20460, by calling the TSCA Assistance Line at (202) 554-1404, by Fax at (202) 554-5603, by e-mail to: tsca-hotline@epa.gov or by visiting their website at www.epa.gov.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Frank Cantone at (646) 733-3038.

Sincerely,

Thomas J. Russo
Director
National Commodity Specialist Division

CLA-2-39:OT:RR:NC:N2:237

Dr. Lucio Siano, President
Coim USA, Inc.
286 Mantua Grove Road
West Deptford, NJ 08066-1738

RE: The tariff classification of eleven thermoplastic polyurethane elastomers from Italy.

Dear Dr. Siano:

In your letter dated February 24, 2012 you requested a tariff classification. You provided eleven sets of dumbbell samples, compounding recipes and elastomeric stretch and return test results for eleven products, along with Technical Data, Typical Properties and MSDS sheets for our review.

Laripur 7025, 8025, 9025, 4525, 5225 and 5725 are described as polyester based thermoplastic polyurethane elastomers designed for resistance to hydrolysis and improved flexibility at low temperatures. Injection molding applications include sport soles, wheels, masks and technical items. Extrusion applications include hoses, profiles, transmission belts and films.

Laripur 9060, 5260 and 5760 are described as polyether based thermoplastic polyurethane elastomers designed for flexibility and resistance to hydrolysis, microbiological attack, cold and oxidation. Injection molding applications include ski boots, tags and technical items. Extrusion applications include hoses, profiles and films.

Laripur 6518 is described as a polyester based thermoplastic polyurethane elastomer designed for fast processing cycles, flexibility and resistance to abrasion. Injection molding applications include high flexibility soles in the shoe industry.

Laripur 2203-93A is described as a polyether based thermoplastic polyurethane elastomer designed for high compression set, resistance to oils and high temperatures. Injection molding applications include hydraulic gaskets and high performance seals.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the HTSUS. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989). EN to Chapter 39.09 (3) Polyurethanes provides: This class includes all polymers produced by the reaction of polyfunctional isocyantes with polyhydroxy compounds, such as, castor oil, butane-1,4-diol, polyether polyols, and polyester polyols. Polyurethanes exist in various forms, of which the most important are the foams, elastomers, and coatings. They are also used as adhesives, molding compounds and fibers. These products are often traded as one part of a multi-component system or set. This group also includes mixtures of polyurethane and unreacted polyfunctional diisocyanate (e.g., toluene diisocyanate). Laripur 7025, 8025, 9025, 4525, 5225, 5725, 9060, 5260, 5760, 6518 and 2203-93A are thermoplastic polyurethanes produced by the reaction of isocyanates with polyether polyols or polyester polyols.

Additional U.S. Notes 1. is relevant to your product and provides: the term “elastomeric” means a plastics material which after cross-linking can be stretched at 20°C 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. Elastomeric plastics may also contain fillers, extenders, pigments or rubber-processing chemicals, whether or not such plastics material, after the addition of such fillers, extenders, pigments or chemicals, can meet the tests specified in the first part of this note. Based on the dumbbell samples, compounding recipes and elastomeric stretch and return test results you provided, Laripur 7025, 8025, 9025, 4525, 5225, 5725, 9060, 5260, 5760, 6518 and 2203-93A thermoplastic polyurethane elastomers meet the requirements for “elastomeric” in Additional U.S. Note 1.

The applicable subheading for Laripur 7025, 8025, 9025, 4525, 5225, 5725, 9060, 5260, 5760, 6518 and 2203-93A thermoplastic polyurethane elastomers will be 3909.50.50000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for: Polyurethanes: Elastomeric, in primary forms. The rate of duty will be free.

This merchandise may be subject to the requirements of the Toxic Substances Control Act (TSCA), which are administered by the U. S. Environmental Protection Agency. Information on the TSCA can be obtained by contacting the EPA at 1200 Pennsylvania Avenue, N.W., Washington, D.C. 20460, by calling the TSCA Assistance Line at (202) 554-1404, by Fax at (202) 554-5603, by e-mail to: tsca-hotline@epa.gov or by visiting their website at www.epa.gov.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Frank Cantone at (646) 733-3038.

Sincerely,

Thomas J. Russo
Director
National Commodity Specialist Division

 

CLA-2-39:OT:RR:NC:N2:237

Dr. Lucio Siano, President
Coim USA, Inc.
286 Mantua Grove Road
West Deptford, NJ 08066-1738

RE: The tariff classification of seven thermoplastic polyurethane elastomers from Italy. Dear Dr. Siano:

In your letter dated July 18, 2012 you requested a tariff classification. You provided seven sets of dumbbell samples, compounding recipes and elastomeric stretch and return test results for seven products, along with Technical Data, Typical Properties and MSDS sheets for our review.

Laripur 5925, 6325 and 9125 are described as polyester based thermoplastic polyurethane elastomers designed for resistance to hydrolysis and improved flexibility at low temperatures. Injection molding applications include sport soles, footwear features, wheels, masks and technical items. Extrusion applications include hoses, profiles, transmission belts and films.

Laripur 6260, 8860EUV and 2102-85AE are described as polyether based thermoplastic polyurethane elastomers designed for flexibility and resistance to hydrolysis, microbiological attack, cold and oxidation. Injection molding applications include ski boots, tags and technical items. Extrusion applications include hoses, profiles, transmission belts and films. The EUV grade is UV light stabilized.

Laripur 2103-90AE is described as a polycaprolactone ester based thermoplastic polyurethane elastomer designed for higher resistance to hydrolysis and flexibility at low temperatures. Injection molding applications include technical items, watch belts, bellows and seals. Extrusion applications include hoses, profiles, transmission belts and films.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the HTSUS. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989). EN to Chapter 39.09 (3) Polyurethanes provides: This class includes all polymers produced by the reaction of polyfunctional isocyanates with polyhydroxy compounds, such as, castor oil, butane-1,4-diol, polyether polyols, and polyester polyols. Polyurethanes exist in various forms, of which the most important are the foams, elastomers, and coatings. They are also used as adhesives, molding compounds and fibers. These products are often traded as one part of a multi-component system or set. This group also includes mixtures of polyurethane and unreacted polyfunctional diisocyanate (e.g., toluene diisocyanate). Laripur 5925, 6325, 9125, 6260, 8860EUV, 2102-85AE and 2103-90AE are thermoplastic polyurethanes produced by the reaction of isocyanates with polyether polyols or polyester polyols.

Additional U.S. Notes 1. is relevant to your product and provides: the term “elastomeric” means a plastics material which after cross-linking can be stretched at 20°C 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. Elastomeric plastics may also contain fillers, extenders, pigments or rubber-processing chemicals, whether or not such plastics material, after the addition of such fillers, extenders, pigments or chemicals, can meet the tests specified in the first part of this note. Based on the dumbbell samples, compounding recipes and elastomeric stretch and return test results you provided, Laripur 5925, 6325, 9125, 6260, 8860EUV, 2102-85AE and 2103-90AE thermoplastic polyurethane elastomers meet the requirements for “elastomeric” in Additional U.S. Note 1.

The applicable subheading for Laripur 5925, 6325, 9125, 6260, 8860EUV, 2102-85AE and 2103-90AE thermoplastic polyurethane elastomers will be 3909.50.1000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for: Polyurethanes: Elastomeric, in primary forms. The rate of duty will be free.

This merchandise may be subject to the requirements of the Toxic Substances Control Act (TSCA), which are administered by the U. S. Environmental Protection Agency. Information on the TSCA can be obtained by contacting the EPA at 1200 Pennsylvania Avenue, N.W., Washington, D.C. 20460, by calling the TSCA Assistance Line at (202) 554-1404, by Fax at (202) 554-5603, by e-mail to: tsca-hotline@epa.gov or by visiting their website at www.epa.gov.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Frank Cantone at (646) 733-3038.

Sincerely,

Thomas J. Russo
Director
National Commodity Specialist Division

 

LA-2 CO:R:C:G 083431 JMH

Daniel W. Szymanski
Traffic Manager
Panduit Corp.
17301 Ridgeland Avenue
Tinley Park, Illinois 60477-0981

RE: Cable splicing kit

Dear Mr. Szymanski:

Your letter of November 15, 1988, requesting a ruling classification under the Harmonized Tariff Schedule of the United States (HTSUSA) for your Cell-Cast cable splicing kit was referred to this office for a reply.

FACTS:

The merchandise in question, the Cell-Cast cable splicing kit, is imported from Switzerland. The kit consists of a thermoplastic mold, plastic sealing tape, and a two-part polyurethane casting resin. The mold is placed around the cables to be spliced together, the ends of the mold are sealed to the cables with the tape, and then the resin is poured into the mold.

The Cell-Cast kit is for industrial use in the splicing of electrical, telephone, and signal cables. It will be sold directly to the users.

ISSUE:

Whether General Rule of Interpretation 3(b) of the HTSUSA covers goods to be sold directly to the end user and in retail stores.

LAW AND ANALYSIS:

The classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI’s). GRI 1 states in part that “for legal purposes, classification shall be determined according to the terms of the headings and any -2-

relative section or chapter notes and…according to the following provisions.” The “following provisions” include GRI 3(b) which states “…goods put up in sets for retail sale…shall be classified as if they consisted of the material or component which gives them their essential character…” (emphasis added).

In the present situation, the mold, resin, and tape are sold together as a set. However, they are not sold in retail stores. Since there are no chapter or section notes which address this point, the Explanatory Notes to the HTSUSA must be examined. Although not dispositive, the Explanatory Notes are to be looked to for the proper interpretation of the HTSUSA. 54 Fed Reg. 35127, 35128 (August 23, 1989).

The Explanatory Note for GRI 3 is instructive. The Explanatory Note states:

For the purposes of the Rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which: (a) consist of at least two different articles which are, prima facie, classifiable in different headings. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of the Rule; (b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and (c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards). (emphasis added) Harmonized Commidity Description and Coding System, Vol. 1, p. 4.

Since the parts of the definition are listed in the conjunctive, all three parts must be fulfilled. First, the Cell- Cast kit is made of three items, all of which are classifiable in different headings of the HTSUSA. Secondly, the three products are sold together for the singular purpose of splicing cables. Finally, the kit is sold directly to its users without any further packaging or packing. Therefore, the Cell-Cast kit are “goods put up in sets for retail sale” within the meaning of GRI 3(b).

In order to classify the kit it must be determined which component gives the set its “essential character.” It is the opinion of this office that the polyurethane casting resin gives the kit its essential character. All parts of the kit are necessary. However, it is the resin which acts as the splicing agent to hold the wires together. Furthermore, the importer’s catalogue focuses primarily upon the various resins indicating that the resin is the crucial element of the activity.

Since the resin gives the kit its essential character, the -3-

classification for the resin will be the classification for the entire set. The appropriate classification for the resin is within heading 3909, HTSUSA, as “Amino-resins, phenolic resins and polyurethanes, in primary forms…” Therefore, the Cell-Cast cable splicing kit is classified within heading 3909, HTSUSA.

HOLDING:

The Cell-Cast cable splicing kit is a set within the meaning of GRI 3(b), with the polyurethane casting resin giving the kit its essential character. The Cell-Cast kit is to be classified within the subheading 3909.50.5000, HTSUSA, for polyurethane resin. The rate of duty is 6.3 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

 

CLA-2 OT:RR:CTF:TCM H192516 AMM

 

Port Director

U.S. Customs and Border Protection

Service Port – Champlain

237 West Service Road

Champlain, NY 12919

Attn: Rebecca Rabideau, SIS

 

RE: Tariff classification of Esacote OP80 and Esacote DP170; Protest Number 0712-11-100408

 

Dear Port Director:

 

This is in reply to an application for further review (AFR) of Protest Number 0712-11-100408, dated August 16, 2011, filed on behalf of Cambrian Chemicals (Cambrian), against U.S. Customs and Border Protection’s (CBP) reclassification and subsequent liquidation of two entries at the Service Port of Champlain (the Port) of Esacote OP80 and Esacote DP170, under the Harmonized Tariff Schedule of the United States (HTSUS).

 

FACTS:

 

The instant products were entered at the Port in July 2010, and are identified as “Esacote OP80” and “Esacote DP170.” Esacote OP80 is a white liquid, while Esacote DP170 is a clear gel. Both products consist of high-density polyurethane dispersed in water. Rigid samples of both products were submitted to the CBP Laboratory for testing in accordance with Additional U.S. Note 1 to Chapter 39, HTSUS. Cambrian also submitted information detailing the manufacturing process for these products.

 

The CBP Laboratory determined that the specimens of Esacote OP80 and Esacote DP170 submitted could be stretched to three times their original length without breaking. See CBP Lab Report NY20110644, dated May 2, 2011. The CPB Lab also determined that the specimens would return to within 150% of their original length within five minutes of being stretched to two times their original length. See CBP Lab Report NY20110644.

 

ISSUE:

 

Whether the instant merchandise is classified as an elastomeric polyurethane in subheading 3909.50.10, HTSUS, or as other than elastomeric in subheading 3909.50.50, HTSUS.

 

LAW AND ANALYSIS:

 

Initially we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest was timely filed on August 17, 2011, within 180 days of liquidation, pursuant to 19 U.S.C. §1514(c)(3).

 

Further review of Protest No. 0712-11-100408 was properly accorded to protestant pursuant to 19 C.F.R. §174.24. Specifically, in accordance with Section 174.24(b), the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Cambrian alleges that the instant merchandise meets the definition of “elastomeric” contained in Additional U.S. Note 1 to Chapter 39, HTSUS, and has submitted facts which were not considered at the time of the protest.

 

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that 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.

 

The 2010 HTSUS provisions at issue are as follows:

 

3909 Amino-resins, phenolic resins and polyurethanes, in primary forms: 3909.50 Polyurethanes: 3909.50.10 Elastomeric 3909.50.50 Other

 

Note 1 to Chapter 39, HTSUS, states, in pertinent part:

 

Throughout the tariff schedule the expression “plastics” means those materials of headings 3901 to 3914 which are or have been capable, either at the moment of polymerization or at some subsequent stage, of being formed under external influence (usually heat and pressure, if necessary with a solvent or plasticizer) by molding, casting, extruding, rolling or other process into shapes which are retained on the removal of the external influence. * * *

 

Note 6 to Chapter 39, HTSUS, states, in pertinent part: “In headings 3901 to 3914, the expression “primary forms” applies only to the following forms: (a) Liquids and pastes, including dispersions (emulsions and suspensions) and solutions; …”.

 

Additional U.S. Note 1 to Chapter 39, HTSUS, states:

 

For the purposes of this chapter, the term “elastomeric” 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. Elastomeric plastics may also contain fillers, extenders, pigments or rubber-processing chemicals, whether or not such plastics material, after the addition of such fillers, extenders, pigments or chemicals, can meet the tests specified in the first part of this note.

 

[emphasis added]

 

The importer entered the instant merchandise under heading 3909, HTSUS, specifically under subheading 3909.50.10, which provides for “[P]olyurethanes, in primary forms: Polyurethanes: Elastomeric”. The Port liquidated this merchandise under subheading 3909.50.50, HTSUS, which provides for “[P]olyurethanes, in primary forms: Polyurethanes: Other”. Cambrian argues in their protest that the merchandise is properly classified under subheading 3909.50.10, HTSUS, and has submitted additional data and samples to CBP for testing and consideration.

 

The instant products, Esacote OP80 and Esacote DP170, consist of a proprietary polyurethane polymer suspended in a liquid form. CBP Laboratory testing has confirmed that the instant merchandise is polyurethane. See CBP Lab Report CH201100139S, dated May 20, 2011. There is no dispute that both Esacote OP80 and Esacote DP170 are properly classified under heading 3909, HTSUS. See Notes 1 and 6(a) to Chapter 39, HTSUS. Rather, the issue is the proper classification at the 8-digit subheading level. As a result, GRI 6 applies.

 

GRI 6 states:
For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.

 

Specifically, the issue is whether the instant products are “elastomeric.” This term is specifically defined in Additional U.S. Note 1 to Chapter 39, HTSUS. To be elastomeric, a given substance must have certain material properties, namely, that it be a plastic material, and that it must be able to be cross-linked. After being cross-linked, test samples must satisfy the stretch and return test given in the Note. See Additional U.S. Note 1 to Chapter 39, HTSUS.

 

Samples submitted to CBP for testing on April 18, 2011, were tested in accordance with the Note. The CBP Laboratory found that the samples could be stretched to three times their original length without breaking, and that after being stretched to twice their original length, they would return to within 150% of their original length within five minutes. See CBP Laboratory Report NY20110644. However, there was no evidence submitted at this time as to whether the polyurethane had been cross-linked.

 

Cross-linking is defined as “attachment of two chains of polymer molecules by bridges, composed of either an element, a group, or a compound, that join certain carbon atoms of the chains by primary chemical bonds[.]” See Hawley’s Condensed Chemical Dictionary, 15th Ed., p. 346 (John Wiley & Sons, Inc., 2007). See also Headquarters Ruling Letter (HQ) 956342, dated September 20, 1994. Cross-linking is a chemical reaction, where long chains of polymers are linked together with other atoms or compounds.

 

On June 21, 2011, Cambrian submitted additional dumbbell-shaped samples and additional information to CBP. The information submitted described the manufacturing process of both Esacote OP80 and Esacote DP170. In that submission, Cambrian detailed the method by which the high density polyurethane polymer chains are cross-linked with both water and isocyanate compounds. Furthermore, the dumbbell-shaped samples were tested in accordance with the requirements of Additional U.S. Note 1 to Chapter 39, HTSUS, and it was determined that the samples could be stretched to three times their original length without breaking, and that after being stretched to twice their original length, they would return to within 150% of their original length within five minutes. See CBP Laboratory Report NY20120697. Therefore, based on documentation submitted by the importer and analyses of the product by the CBP Laboratory, we have concluded that the products known as Esacote OP80 and Esacote DP170 are elastomeric products. Although the instant merchandise is imported in a liquid form, they meet the definition contained in Additional U.S. Note 1 to Chapter 39, HTSUS, as they are plastic materials which, after cross-linking, meet the required stretch and return tests described in the Note. Thus, the instant products are properly classified under subheading 3909.50.10, HTSUS, by operation of GRI 6.

 

HOLDING:

 

By application of GRI 6, the instant products, identified as Esacote OP80 and Esacote DP170, which are the subject of protest number 0712-11-100408, are classified in heading 3909, HTSUS, specifically under subheading 3909.50.10, HTSUS, which provides for: “Amino-resins, phenolic resins and polyurethanes, in primary forms: Polyurethanes: Elastomeric”. The 2010 column one, general rate of duty is free. You are instructed to GRANT the protest in full.

 

In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter.

 

Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

 

 

Sincerely,

 

Myles B. Harmon, Director

Commercial and Trade Facilitation Division

 

CLA-2 OT:RR:CTF:TCM H074375 CKG

 

Port Director

U.S. Customs and Border Protection

Bradley International Airport
International Arrivals Building
Windsor Locks, CT 06096

 

RE: Application for Further Review of Protest Number 0411-09-100006; classification of Patelacol IJ-30 polyurethane resin

 

Dear Port Director,

 

This is in reply to your correspondence forwarding Application for Further Review (AFR) of Protest No. 0411-09-100006, filed on June 17, 2009, on behalf of Esprix Technologies, Inc.

 

The subject merchandise was entered on September 15, 2008, at the Port of Hartford. CBP liquidated the entries on January 9, 2009, in subheading 3909.50.50, HTSUS. Protestant claims classification in subheading 3909.50.20, HTSUS, as a polyurethane cement, and the existence of an established and uniform practice by CBP with respect to the classification of substantially similar merchandise in subheading 3909.50.20, HTSUS.

 

FACTS

 

Patelacol IJ-30 is a polyurethane resin in aqueous dispersion, designed for use as a dye fixing agent for use on ink jet printer paper. The coating is applied to inkjet paper and dried for 1 to 3 minutes at 110-120 degrees Celsius, forming a porous, water-resistant layer. When ink is applied to the paper, it is absorbed via the micropores in the resin coating, which swells and encapsulates the ink. This process prevents the ink from spreading.

 

ISSUE:

 

Whether Patelacol IJ-30 is classified in subheading 3909.50.20, HTSUS, as a polyurethane cement, or in subheading 3909.50.50, HTSUS, as an “other” polyurethane.

 

LAW AND ANALYSIS:

 

Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed within 180 days of liquidation of the first entry on November 17, 2006. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).

 

Further Review of Protest No. 0411-09-100006 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed involves specific factual and legal questions that have not been the subject of a Headquarters ruling or court decision.

 

Classification

 

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that 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.

 

The HTSUS provisions under consideration are as follows:

 

3909: Amino-resins, phenolic resins and polyurethanes, in primary forms:

 

3909.50: Polyurethanes:

 

3909.50.20: Cements ….

 

3909.50.50: Other….

 

• • • • The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the HTSUS. While not legally binding or dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

 

EN 39.09 provides, in pertinent part, as follows: (3)   Polyurethanes This class includes all polymers produced by the reaction of polyfunctional isocyanates with polyhydroxy compounds, such as, castor oil, butane‑1,4‑diol, polyether polyols, polyester polyols. Polyurethanes exist in various forms, of which the most important are the foams, elastomers, and coatings. They are also used as adhesives, moulding compounds and fibres.  These products are often traded as one part of a multi-component system or set.” * * * * Protestant alleges that the instant merchandise is a polyurethane cement of subheading 3909.50.20, HTSUS. There is no dispute that the merchandise is classified in heading 3909, HTSUS, as a polyurethane in primary form. At issue is the proper eight-digit classification, which requires the application of GRI 6. GRI 6 requires that the GRI’s be applied at the subheading level on the understanding that only subheadings at the same level are comparable.

 

The term “cement” is not defined in the HTSUS or its legislative history. It is also not defined in any of the chapters or section notes at issue. When a tariff term is not defined, the term’s correct meaning is presumed to be its common meaning in the absence of evidence to the contrary. See Rohm & Haas Co. v. United States, 727 F.2d 1095 (CAFC 1984). The courts have considered the common meaning of “cement” under the HTSUS. In Naftone, Inc. v. United States., 74 Cust. Ct. 1, C.D. 4578 (1975), the Customs Court defined a “cement” as “a substance which is specifically designed for the cementing of materials to each other and which, in its imported condition, can accomplish that purpose.” The Naftone Court further cites to the definition of cement set out in Norton and Ellis, Inc. v. United States, 52 Cust. Ct. 76, C.D. 2440 (1964), as follows: “any substance used by men or animals for making bodies adhere to each other.” In addition, the Merriam Webster online dictionary defines “cement” as “a binding element or agency: as a : a substance to make objects adhere to each other.” The Cambridge online dictionary similarly calls cement “a substance which sticks things together.”

 

Protestant claims that the instant merchandise is a cement pursuant to the above definitions because it binds to the inkjet printer paper, as well as binding the ink to the paper.

 

However, the resin is not used or designed for cementing materials or bodies to each other. The polyurethane resin is an adhesive substance, and thus adheres to the paper. The protestant also describes the chemical reaction between the cationic (consisting of positively charged molecules) resin and anionic (negatively charged) ink as similar to a chemical reaction forming an ionic complex. Chemical adhesion occurs when the surface atoms of two separate surfaces form ionic bonds. Therefore, the resin appears to adhere to the ink. However, it is unclear that the resin is causing the ink to adhere to the paper; the paper absorbs the ink regardless of the presence of the resin coating. The coating simply encapsulates and thus fixes the ink in place, which prevents the ink from bleeding or smearing and allows for quick drying. Furthermore, it is clear that the cited Customs Court decisions as well as prior CBP rulings use the term “cement” in a specific context—that of adhering solid bodies to each other. See also HQ 957194, dated April 7, 1995; HQ 082365, dated March 30, 1989; and NY N027053, dated May 29, 2008 (in which CBP declined to classify a polyurethane resin as a cement in subheading 3909.50.20, HTSUS, because it was used as a binder for waterborne coatings, and not as an adhesive). Protestant has provided no evidence that the term “cement” encompasses dye or ink fixing.

 

There is also no evidence that polyurethane resins in general are principally used as adhesives. Other common uses of polyurethane resins include foam insulation and upholstery, as well as abrasion-resistant coatings.

 

Established and Uniform Practice

 

Protestant further argues that there was an established and uniform practice of classifying its goods under subheading 3909.50.20, HTSUS, and that CBP has failed to comply with the requirements of 19 U.S.C. 1315(d) which concerns the effective date of administrative rulings resulting in higher rates. Section 1315(d) provides as follows:

No administrative ruling resulting in the imposition of a higher rate of duty or charge than the Secretary of Treasury shall find to have been applicable to imported merchandise under an established and uniform practice shall be effective with respect to articles entered for consumption or withdrawn from warehouse for consumption prior to the expiration of thirty days after the date of publication in the Federal Register of notice of such ruling.

 

Title 19 of the Code of Federal Regulations (CFR) sets forth the evidentiary standards for a finding of established and Uniform Practice. 19 CFR 177.12 provides, in pertinent part, as follows:

 

• 177.12 Modification or revocation of interpretive rulings, protest review decisions, and previous treatment of substantially identical transactions. … (c) Treatment previously accorded to substantially identical transactions — (1) General. The issuance of an interpretive ruling that has the effect of modifying or revoking the treatment previously accorded by Customs to substantially identical transactions must be in accordance with the procedures set forth in paragraph (c)(2) of this section. The following rules will apply for purposes of determining under this section whether a treatment was previously accorded by Customs to substantially identical transactions of a person: (i) There must be evidence to establish that: (A) There was an actual determination by a Customs officer regarding the facts and issues involved in the claimed treatment; (B) The Customs officer making the actual determination was responsible for the subject matter on which the determination was made; and (C) Over a 2-year period immediately preceding the claim of treatment, Customs consistently applied that determination on a national basis as reflected in liquidations of entries or reconciliations or other Customs actions with respect to all or substantially all of that person’s Customs transactions involving materially identical facts and issues; (ii) The determination of whether the requisite treatment occurred will be made by Customs on a case-by-case basis and will involve an assessment of all relevant factors. In particular, Customs will focus on the past transactions to determine whether there was an examination of the merchandise (where applicable) by Customs or the extent to which those transactions were otherwise reviewed by Customs to determine the proper application of the Customs laws and regulations. For purposes of establishing whether the requisite treatment occurred, Customs will give diminished weight to transactions involving small quantities or values, and Customs will give no weight whatsoever to informal entries and to other entries or transactions which Customs, in the interest of commercial facilitation and accommodation, processes expeditiously and without examination or Customs officer review; … (iv) The evidentiary burden as regards the existence of the previous treatment is on the person claiming that treatment. The evidence of previous treatment by Customs must include a list of all materially identical transactions by entry number (or other Customs assigned number), the quantity and value of merchandise covered by each transaction (where applicable), the ports of entry, the dates of final action by Customs, and, if known, the name and location of the Customs officer who made the determination on which the claimed treatment is based. In addition, in cases in which an entry is liquidated without any Customs review (for example, the entry is liquidated automatically as entered), the person claiming a previous treatment must be prepared to submit to Customs written or other appropriate evidence of the earlier actual determination of a Customs officer that the person relied on in preparing the entry and that is consistent with the liquidation of the entry.

 

• • • • In the instant case, protestant alleges that since 2001, seven different ports have liquidated as many as 21 entries by Esprix of similar or identical merchandise in subheading 3909.50.20, HTSUS. Protestant further points to two ruling letters, HQ 957358 and HQ 957359, both issued on August 22, 1995, classifying polyurethane binders as cement of subheading 3909.50, HTSUS. However, both of these rulings classified polyurethane binders in subheading 3909.50.50, HTSUS, as an “other” polyurethane. Neither ruling classified the products at issue as polyurethane cements of subheading 3909.50.20, HTSUS. And as noted above, CBP has declined to classify polyurethane resins as cements when used as binders or carrier for coatings. See NY N027053, dated May 29, 2008.

 

Protestant, furthermore, provides no evidence beyond the entry or invoice numbers of the merchandise which it claims is similar or identical to the product at issue. Nor was any evidence provided regarding quantity or value, dates of final action, examination by a Customs officer, or other evidence that an actual determination was made regarding the facts or issues involved in the claimed treatment. As noted in 19 CFR 177.12(c)(ii), CBP will give no weight whatsoever to informal entries and to other entries or transactions which Customs, in the interest of commercial facilitation and accommodation, processes expeditiously and without examination or Customs officer review. Pursuant to 19 CFR 177.12(c)(iv), the person claiming a previous treatment must be prepared to submit to Customs written or other appropriate evidence of the earlier actual determination of a Customs officer that the person relied on in preparing the entry and that is consistent with the liquidation of the entry. In the absence of such evidence, we decline to find that an established and uniform practice classifying identical or similar merchandise in subheading 3909.50.20, HTSUS, was in effect at the time of entry or liquidation of the subject merchandise in subheading 3909.50.50, HTSUS.

 

HOLDING:

 

By application of GRIs 1 and 6, Patelacol IJ-30 is classified in heading 3909, HTSUS, specifically subheading 3909.50.50, which provides for “Amino-resins, phenolic resins and polyurethanes, in primary forms: Polyurethanes: Other.” The 2008 general, column one rate of duty is 6.3% ad valorem.

 

Liquidation of the subject entries in subheading 3909.50.50, HTSUS, was not in violation of any established and uniform practice by CBP with respect to the classification of substantially similar merchandise in subheading 3909.50.20, HTSUS.

 

You are instructed to deny the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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 in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

 

 

Sincerely,

 

Myles Harmon, Director,

Commercial and Trade Facilitation Division

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Janron Consult, Tax Consultant Kenya, Customs Tax Consultant Kenya, Tax Advisory Kenya

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