CLA-2 CO:R:C:F 953220 EAB
District Director
U.S. Customs Service
101 East Main Street
Norfolk, Virginia 23510
Re: Application for Further Review of Protest No. 1401-92-100168,
dated October 26, 1992, concerning polyethers; ALP-3858; BP-
0580; PE-8901; laboratory analysis
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-3858, BP-
0580 and PE-8901 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; each
sample has been reported as a polyether which when mixed with water
at a concentration of 0.5 percent at 20 degrees centigrade 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. Protestant's analytical data of PE-8901 reports
a three-event average surface tension of 0.5 percent water solution
of 35.54 dyne/cm, with each event measuring less than 45 dyne/cm;
two of the three results averaged for ALP-3858 exceeded the 45
dyne/cm or less test level and one of only two results averaged for
BP-0580 were within the limit.
ISSUE:
What is the proper classification under the HTSUSA of
polyethers referred to as ALP-3858, BP-0580 and PE-8901?
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-3858 and BP-0580 polyethers
are not classifiable under heading 3402, HTSUSA, because they fail
to meet the standards of Note 3, Chapter 34 and we do not find
Protestant's analytical data convincing; the methodology lacks
uniformity, i.e., the averages were not taken from the same number
of test samples, and for each polyether, the median results
averaged were in excess of the 45 dyne/cm acceptable maximum.
We are of the further opinion that the PE-8901 polyether is
not classifiable under heading 3402. We acknowledge that
Protestant has submitted data which we found in HQ 953221 (April
2, 1993) to be the best information available upon which to base
the classification of products that are similar to the products at
issue here, due to the fact that Customs did not conduct and report
out a laboratory analysis for one of the products. In this
instance, Customs Laboratory has determined that the submitted
sample has a surface tension in excess of the maximum allowed for
purposes of classification under heading 3402.
HOLDING:
The protest should be denied.
The products known as ALP-3858, BP-0580 and PE-8901 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.
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