CLA-2 RR:CR:GC 957983 EAB
U.S. Customs Service
1 East Bay Street
Savannah, Georgia 31401
Re: Protest 1703-95-100134; Soarnol®, polyvinyl alcohol-polyethylene copolymer or poly(-vinyl alcohol- -ethylene) copolymer
Dear Port Director:
This is our decision on protest 1703-95-100134 filed September 21, 1995, against your decision in the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of merchandise entered February 24, 1995, with liquidation on June 23, 1995. In the preparation of this ruling, consideration was given to the representations made by counsel in a meeting with representatives of this office on December 9, 1997, and counsel’s letter of June 1, 1998.
The merchandise, identified commercially as Soarnol®, was entered under subheading 3905.20.0000, HTSUS, a provision for polyvinyl alcohols, whether or not containing unhydrolyzed acetate groups, dutiable at the column one General rate of 3.2 % ad valorem.
Customs reclassified the merchandise and liquidated the entry in subheading 3905.90.1000, HTSUS, a residual provision for other vinyl polymers in primary forms containing by weight 50 % or more of derivatives of vinyl acetate, dutiable at the column one General rate of 4 % ad valorem.
Customs Laboratory Report 4-95-21149-001 dated May 11, 1995, identifies a presumably identical product from another entry supplied by the protestant, as “clear, colorless, uniform [sic] shaped pellets composed of poly(vinyl alcohol-ethylene) copolymer" composed of 60 % by weight polyvinyl alcohol and 40 % by weight polyethylene; inasmuch as polyvinyl alcohol is a derivative of vinyl acetate, the sample, therefore, “contains 50 percent or more of derivatives of vinyl acetate by weight.”
Protestant seeks reclassification to subheading 3905.20.0000, HTSUS.
Whether Soarnol® is classifiable under the HTSUS as a polyvinyl alcohol or as an “other” vinyl polymer containing by weight 50 % or more of derivatives of vinyl acetate.
LAW AND ANALYSIS:
Merchandise imported into the U.S. is classified under the HTSUS. 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 HTSUS 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 GRIs taken in order.
It is undisputed that Soarnol® is a plastic in primary form and a polymer of the kind described by the terms of heading 3905, HTSUS (1995), which provides, in part, as follows:
3905 Polymers of vinyl acetate or of other vinyl esters, in primary forms; other vinyl polymers in primary forms:
Polymers of vinyl acetate:
3905.11.00 In aqueous dispersion
3905.20.00 Polyvinyl alcohols, whether or not containing unhydrolyzed acetate groups
3905.90.10 Containing by weight 50 percent or more of derivatives of vinyl acetate
Legal Note 4, Chapter 39, HTSUS (1995), provides in part that copolymers are to be classified in the heading covering polymers of that comonomer which predominates by weight over every other single comonomer present. For purposes of classification of such products under the HTSUS, this legal note also defines the term “copolymers”:
The expression “copolymers” covers all polymers in which no single monomer contributes 95 percent or more by weight to the total polymer content.
Legal Note 4, Chapter 39, HTSUS (1995). Based upon Customs Laboratory Report, supra, Soarnol® is clearly a “copolymer” of 60 % by weight of polyvinyl alcohol and 40 % by weight of polyethylene that is described by the terms of heading 3905 and is classified therein pursuant to Legal Note 4, Chapter 39, HTSUS.
Subheading Note 1, Chapter 39, HTSUS (1995), provides that:
Within any one heading of this chapter, copolymers . . . are to be classified in the same subheading as homopolymers of the predominant comonomer . . ., provided that such copolymers . . . are not more specifically covered by any other subheading and that there is no residual subheading named "Other" in the series of subheadings concerned.
The critical issue of classification in the appropriate subheading under Heading 3905, HTSUS, concerns the application of Subheading Note 1, Chapter 39.
The Subheading Explanatory Note to Subheading Note 1, Chapter 39, reads in pertinent part as follows:
This Note governs the classification of copolymers, chemically modified polymers and polymer blends in the subheadings. . . .
According to Subheading Note 1, copolymers of all kinds and chemically modified polymers are to be classified:
(1) in the specific subheading, if any, which covers them;
(2) if there is no such specific subheading, in the appropriate residual subheading (i.e., one reading simply “Other”); or
(3) if there is no such residual subheading, in the subheading covering homopolymers of the predominant comonomer or, in the case of chemically modified polymers, in the subheading covering the unmodified polymer (this rule, in effect, applies to subheadings of headings 39.07 and 39.09 only).
ENs (1995) at 555.
Within heading 3905, HTSUS, there is no specific subheading which covers the copolymer poly-(vinyl alcohol-ethylene), which copolymer may also be identified as polyvinyl alcohol-polyethylene. See Subheading EN 1(1), Chapter 39, HTSUS. Since there is no such specific subheading, the copolymer is appropriately classified in the residual subheading “Other”. See Subheading EN 1(2), Chapter 39, HTSUS. We find that Soarnol® is classifiable in subheading 3905.90.1000, HTSUS, the residual provision for polymers containing by weight 50 % or more of polyvinyl alcohol, a derivative of vinyl acetate.
Protestant claims that Soarnol® itself should be thought of as either a form of polyvinyl alcohol or as a chemically modified polyvinyl alcohol and, in either event, classifiable in subheading 3905.20.00, HTSUS, the subheading in which homopolymers of polyvinyl alcohols are classified. As conceded by the protestant, however (page 2, June 1, 1998 letter), Soarnol® is not a homopolymer; it is a copolymer of polymers of ethylene and polyvinyl alcohols in which neither contributes 95 % or more by weight to the total polymer content. Pursuant, therefore, to Subheading EN 1, Chapter 39, Soarnol® cannot be classified “as if” it were either of the polymers of which it is composed, it must be classified in accordance to the rules of Subheading Note 1, Chapter 39, HTSUS, and the EN therefor. As is made very clear by those EN, there is no specific subheading which covers a copolymer of ethylenes and polyvinyl alcohols (compare Subheading EN 1(A)(3), stating that “[a]crylonitrile-butadiene-styrene (ABS) copolymers of heading 39.03, i.e., those in which styrene is the predominate comonomer, are to be classified in subheading 3903.30 because this subheading specifically names them [note that subheading 3903.30 is for “[a]crylonitrile-butadiene-styrene (ABS) copolymers”]” to Subheading EN 1(B)(3), stating that “[c]opolymers consisting of 60 % styrene, 30 % acrylonitrile and 10 % of another monomer or monomers (e.g., vinyl toluene), being polymers of heading 39.03 because styrene is the predominant comonomer, are to be classified in subheading 3901.90, “Other”, because they are not of styrene and acrylonitrile only and thus there is no more specific subheading to cover them”). Because there is no specific subheading which covers Soarnol® and there is a residual subheading “Other”, pursuant to the Subheading EN, Soarnol® must be classified in that subheading.
Furthermore, we disagree with counsel’s sense of the chemical nature of Soarnol®. We believe (and technical literature and the Customs laboratory report support this) that Soarnol® is not a polyvinyl alcohol, nor is it either a derivative of polyvinyl alcohol or a chemically modified polyvinyl alcohol, but a copolymer composed of 60 % by weight of polyvinyl alcohol, which is a derivative of vinyl acetate, and 40 % by weight of polyethylene. Finally, assuming for purposes of discussion only, that Soarnol® were a polymer of chemically modified polyvinyl alcohol, then pursuant to Legal Note 4, Chapter 39, 95 % or more by weight of Soarnol® would have to be polyvinyl alcohol. Customs laboratory reports that Soarnol® contains but 60 % by weight of polyvinyl alcohol, and 40 % by weight of polyethylene.
Counsel also argues that subheading 3905.20.00 also “covers” Soarnol® by virtue of GRIs 2(b) and 3, HTSUS. Under GRIs 2(b) and 3, “[a]ny reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance [and] [t]he classification of goods consisting of more than one material or substance shall be according to the principles of rule 3 [which provides, in the situation claimed by the protestant to be applicable, for classification according to the material or substance which gives the goods their essential character, or if essential character cannot be determined, according to the heading which occurs last in numerical order among those which equally merit consideration].”
We disagree with this argument. The Courts have held that:
. . . GRI 1 provides that “classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to [the subordinate GRIs].” . . . Accordingly, only when the relevant headings and the chapter and section notes do not themselves determine classification does one look to the subordinate GRIs in the HTSUS hierarchy. [citations omitted].
Ciba Geigy Corporation v. United States, 1998 Ct.Int.Trade, LEXIS 172, 23; Slip Op. 98-168.
In this case, the relevant headings and the chapter and section notes do themselves determine classification (see above). We may not, therefore, look to the subordinate GRIs.
In conclusion, we find that Soarnol®, a 60/40 copolymer of polyvinyl alcohol and polyethylene, is not polyvinyl acetate, is not a vinyl acetate copolymer, is not polyvinyl alcohol, but was properly classified under subheading 3905.90.1000, HTSUS, as an “other” vinyl polymer in primary form.
Soarnol® is classifiable in subheading 3905.90.1000, HTSUS, the provision for other polymers consisting of 50 % or more by weight of derivatives of vinyl acetate.
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, your 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.gov, by means of the Freedom of Information Act, and other methods of public distribution.
[Marvin Amernick, for]
John A. Durant, Director
Commercial Rulings Division