CLA-2 OT:RR:CTF:TCM H110997 CkG
Ms. Janet C. Wallett
825 Old Trail Road
Etters, PA 17319
Re: Revocation of NY N027045; classification of polyphenylene sulfide
Dear Ms. Wallett,
This is in reference to New York Ruling Letter (NY) N027045, issued by the Customs and Border Protection (CBP) National Commodity Division on May 22, 2008, regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of polyphenylene sulfide. We have reconsidered this decision, and for the reasons set forth below, have determined that classification of polyphenylene sulfide as polyether of heading 3907, HTSUS, is incorrect.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke NY N027045 was published on June 22, 2011, in Volume 45, Number 26, of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
NY N027045, dated May 22, 2008, describes the product at issue as follows:
DIC PPS FZ-1140-D5 Black consists of polyphenylene sulfide homopolymer (CAS-25212-74-2) glass reinforced (40%) molding resin with carbon black (0.75%) and a mold release agent (1%). The black colored resin will be imported in pellet form for use in the manufacture of injection molded plastic housings for electronic connectors.
DIC PPS FZ-1140-D5 Natural consists of polyphenylene sulfide homopolymer (CAS-25212-74-2) glass reinforced (40%) molding resin with a mold release agent (1%). The natural colored resin will be imported in pellet form for use in the manufacture of injection molded plastic housings for electronic connectors.
Polyphenylene sulfide (PPS) is a thermoplastic polymer containing a phenylene ring (a modified aromatic compound derived from benzene by the removal of two hydrogen atoms—i.e., with a chemical formula of C6H4 instead of C6H6) and sulfur atom which are linked in alternating para-position. Polyphenylene sulfide has the empirical formula (C6H4S)n. A diagram of its chemical structure is included below. The Chemical Abstracts Service Registry number of the DIC polyphenylene sulfide is CAS CAS-25212-74-2. Polyphenylene sulfide is thermoplastic, meaning that the plastic becomes soft and formable when heated, and rigid and usable as a formed article when cooled. Each time it is reheated it can be reshaped or formed into a new article.
ISSUE:
Whether polyphenylene sulfide is classified in heading 3907, HTSUS, as
an “other” polyether, or in heading 3911, HTSUS, as a polysulfide.
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods 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 GRIs 2 through 6 may then be applied in order.
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).
The HTSUS provisions under consideration are as follows:
3907: Polyacetals, other polyethers and epoxide resins, in primary forms; polycarbonates, alkyd resins, polyallyl esters and other polyesters, in primary forms:
3907.20.00: Other polyethers . . .
* * * * *
3911: Petroleum resins, coumarone-indene resins, polyterpenes, polysulfides, polysulfones and other products specified in note 3 to this chapter, not elsewhere specified or included, in primary forms:
3911.90: Other:
Other:
Containing monomer units which are aromatic or modified aromatic, or which are obtained, derived or manufactured in whole or in part therefrom:
Thermoplastic:
3911.90.25: Other . . .
* * * * *
Note 3(b) to Chapter 39, HTSUS, states as follows:
Headings 3901 to 3911 apply only to goods of a kind produced by chemical synthesis, falling in the following categories: Resins, not highly polymerized, of the coumarone-indene type (heading 3911);
* * * * *
Note 6 to Chapter 39 states:
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;
(b) Blocks of irregular shape, lumps, powders (including molding powders),
granules, flakes and similar bulk forms.
* * * * *
The EN to Chapter 39 provides as follows:
Primary forms
Headings 39.01 to 39.14 cover goods in primary forms only. The expression “ primary forms ” is defined in Note 6 to this Chapter. It applies only to the following forms :
…
Liquids and pastes. These may be the basic polymer which requires “ curing ” by heat or otherwise to form the finished material, or may be dispersions (emulsions and suspensions) or solutions of the uncured or partly cured materials. In addition to substances necessary for “ curing ” (such as hardeners (cross linking agents) or other co reactants and accelerators), these liquids or pastes may contain other materials such as plasticisers, stabilisers, fillers and colouring matter, chiefly intended to give the finished products special physical properties or other desirable characteristics…
Powder, granules and flakes. In these forms they are employed for moulding, for the manufacture of varnishes, glues, etc. and as thickeners, flocculants, etc. They may consist of the unplasticised materials which become plastic in the moulding and curing process, or of materials to which plasticisers have been added; these materials may incorporate fillers (e.g., wood flour, cellulose, textile fibres, mineral substances, starch), colouring matter or other substances cited in Item (1) above.
EN 39.07 (2) provides as follows:
This heading covers :
Other polyethers. Polymers obtained from epoxides, glycols or similar materials and characterised by the presence of ether functions in the polymer chain. They are not to be confused with the polyvinyl ethers of heading 39.05, in which the ether functions are substituents on the polymer chain. The most important members of this group are poly(oxyethylene) (polyethylene glycol), polyoxypropylene and polyphenylene oxide (PPO) (more correctly named poly(dimethylphenylene oxide)). These products have a variety of uses, PPO being used, like the polyacetals, as engineering plastics, polyoxypropylene as an intermediate for polyurethane foam.
EN 39.11 provides, in pertinent part, as follows:
This heading covers the following products:
…
(2) Polysulphides are polymers characterised by the presence of monosulphide linkages in the polymer chain, for example, poly(phenylene sulphide). In polysulphides each sulphur atom is bound on both sides by carbon atoms, as opposed to the thioplasts of Chapter 40, which contain sulphur sulphur linkages. Polysulphides are used in coatings and in moulded articles, for example, aircraft and automobile parts, pump impellers.
* * * * *
Initially, we note that both headings at issue pertain to polymers in primary forms. Primary forms are defined in Note 6 to the Chapter as liquids and pastes, including dispersions (emulsions and suspensions) and solutions; and Blocks of irregular shape, lumps, powders (including molding powders), granules, flakes and similar bulk forms. The General ENs to the Chapter make clear that additions such as fillers, coloring matter and other substances added to primary forms do not effect classification as such. The glass reinforcement, mold release agent and color added to the instant PPS does not therefore effect its classification under GRI 1 as PPS. See HQ 965290, dated June 5, 2002.
The ENs make clear that PPS is a type of polysulfide because the sulfur atoms in the structure are bound on both sides by carbon atoms. It is therefore fully described by the terms of heading 3911, HTSUS. NY N027045 classified two polyphenylene sulfide homopolymer (CAS-25212-74-2) molding resins in heading 3907, HTSUS, as an “other” polyether. This classification was incorrect. Polyphenylene sulfide is not classifiable as a polyether of heading 3907, HTSUS. A polyether is characterized by an oxygen atom connected to two alkyl or aryl groups (i.e., an oxygen atom linked on both sides by carbon-hydrogen compounds). Polyphenylene sulfide does not contain any oxygen atoms in its chemical structure. Polyphenylene sulfide is thus classified in heading 3911, HTSUS, as a polysulfide.
HOLDING:
By application of GRI 1, polyphenylene sulfide is classified in heading 3911, HTSUS, specifically subheading 3911.90.25, which provides for “Petroleum resins, coumarone-indene resins, polyterpenes, polysulfides, polysulfones and other products specified in note 3 to this chapter, not elsewhere specified or included, in primary forms: Other: Other: Containing monomer units which are aromatic or modified aromatic, or which are obtained, derived or manufactured in whole or in part therefrom: Thermoplastic: Other.” The 2010 general, column one rate of duty is 6.1% ad valorem.
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/.
EFFECT ON OTHER RULINGS:
NY N027045, dated May 22, 2008, is hereby revoked. In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division