CLA-2 CO:R:C:F 953221 EAB
District Director
U.S. Customs Service
101 East Main Street
Norfolk, Virginia 23510
Re: Application for Further Review of Protest No. 1401-92-100167,
dated October 26, 1992, concerning polyethers; surface-active
agents; ALP-0600; ALP-0826; ALP-1223; ALP-1458; PE-8742
Dear Sir:
This is a decision on a protest filed October 26, 1992,
against your decision in the classification of merchandise
liquidated during 1992 and entered in 1991 and 1992.
FACTS:
The protestant entered products identified as ALP-0600, -
0826, -1223, -1458 and PE-8742 in subheading 3402.13.5000,
Harmonized Tariff Schedule of the United States Annotated (HTSUSA),
a provision for other nonionic organic surface-active agents,
dutiable at the column 1 general rate of 3.7 percent ad valorem.
Customs reclassified the merchandise under subheading
3907.20.0000: other polyethers in primary forms, dutiable at the
column 1 general rate of 2.2 cents/kg plus 7.7 percent ad valorem.
Submitted for Customs Laboratory analysis were samples of all
but PE-8742. Each sample has been reported as a polyether which
when mixed with water at a concentration of 0.5 percent at 20
degrees C and left to stand for one hour at the same temperature
failed to reduce the surface tension of the water to 45 dyne/cm or
less.
Protestant has submitted analytical data for all of the
products at issue. The data submitted conforms to Customs analysis
that the ALP-type polyethers fail to reduce the surface tension of
water under specified conditions to 45 dyne/cm or less.
We note that Protestant's analytical data of PE-8742 reports
a three-event average surface tension of 0.5 percent water solution
of 35.88 dyne/cm, with each event meeting the standard.
ISSUE:
What is the proper classification under the HTSUSA of
polyethers referred to as ALP-0600, ALP-0826, ALP-1223, ALP-1458
and PE-8742?
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.
GRI 1 requires that classification be determined first
according to the terms of the headings of the tariff schedule and
any relative section or chapter notes and, unless otherwise
required, according to the remaining GRI's taken in order.
Heading 3402 describes, among other products, organic surface-
active agents other than soap. Merchandise classifiable thereunder
is subject to the standards set forth in Note 3, Chapter 34,
HTSUSA; in particular, a surface-active agent of heading 3402 shall
reduce the surface tension of water to 45 dyne/cm or less under the
conditions specified.
We are of the opinion that the ALP-type polyethers are not
classifiable under heading 3402, HTSUSA, because they fail to meet
the standards of Note 3, Chapter 34.
Based upon the best information available, we are of the
opinion that PE-8742 is classifiable under subheading 3402.13.5000.
HOLDING:
The products known as ALP-0600, ALP-0826, ALP-1223 and ALP-
1458 are classifiable under subheading 3907.20.0000, HTSUSA, a
provision for polyacetals, other polyethers and epoxide resins, in
primary forms; polycarbonates, alkyd resins, polyallyl esters and
other polyesters, in primary forms; other polyethers.
Merchandise classifiable under the foregoing subheading for
the year 1992 was subject to a column 1 general rate of duty of 2.2
cents/kg plus 7.7 percent ad valorem.
The product known as PE-8742 is classifiable under subheading
3402.13.5000, HTSUSA, a provision for organic surface-active agents
(other than soap); surface-active preparations, washing
preparations (including auxiliary washing preparations) and
cleaning preparations, whether or not containing soap, other than
those of heading 3401; organic surface-active agents, whether or
not put up for retail sale; nonionic; other; other.
Merchandise classifiable under the foregoing subheading for
the year 1992 was subject to a column 1 general rate of duty of 3.7
percent ad valorem.
You are instructed to deny the protest, except to the extent
reclassification of the merchandise as indicated above results in
a partial allowance.
A copy of this decision should be attached to the Customs Form
19 and provided to the protestant as part of the notice of action
on the protest.
Sincerely,
John Durant, Director