CLA-2 OT:RR:CTF:TCM H213696 AMM
Port Director
U.S. Customs and Border Protection
330 2nd Ave. South
Suite 560
Minneapolis, MN 55401
Attn: Beverly Baer, Supervisory Import Specialist
RE: Application for Further Review of Protest No. 3501-12-100010; Tariff classification of Techpolymer MBX-8
Dear Port Director:
This letter is in reply to protest, and application for further review (AFR), number 3501-12-100010, dated January 17, 2012, filed on behalf of Nagase & Co., LTD. (Protestant), against U.S. Customs and Border Protection’s (CBP) reclassification and subsequent liquidation at the Service Port of Minneapolis (the Port) of six entries of the chemical identified as Techpolymer MBX-8, under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
This protest pertains to six entries, which took place between July 4, 2011 and October 31, 2011, and were liquidated by the Port on January 13, 2012. The product at issue in the protest is a chemical identified as Techpolymer MBX-8. A sample was submitted for review.
Techpolymer MBX-8 is described as acrylic copolymer beads, with an average particle size of 8 microns (µm). According to information submitted by the manufacturer, the merchandise consists of more than 98% copolymer, with the balance being unidentified additives, and the copolymer component consists of 95% Poly(methyl methacrylate) and 5% ethyleneglycol dimethacrylate. CBP Laboratory Report No. NY20122321, dated February 8, 2013, confirms that the sample submitted for examination is a copolymer of Poly(methyl methacrylate) and ethyleneglycol dimethacrylate. Review of the sample submitted indicates that the product is imported as polymer beads suspended in liquid.
Protestant entered the instant product under heading 3906, HTSUS, specifically under subheading 3906.90.50, which provides in pertinent part for “Acrylic polymers in primary forms: Other: Other: Other”. The Port liquidated the instant product under heading 3906, HTSUS, specifically under subheading 3906.90.20, HTSUS, which provides for Acrylic polymers in primary forms: Other: Other: Plastics”.
ISSUE:
Whether the instant Techpolymer MBX-8 is classified under subheading 3906.90.20, HTSUS, as “Acrylic polymers in primary forms: Other: Other: Plastics”, or under subheading 3906.90.50, HTSUS, as “Acrylic polymers in primary forms: Other: Other: Other”.
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 January 17, 2012, within 180 days of liquidation, pursuant to 19 U.S.C. §1514(c)(3).
Further review of Protest No. 3501-12-100010 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. Protestant asserts that the instant product does not meet the definition of “plastic” contained in Note 1 to Chapter 39, HTSUS, an argument that was 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 2011 HTSUS provisions at issue are as follows:
3906 Acrylic polymers in primary forms:
3906.90 Other:
Other:
3906.90.20 Plastics
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3906.90.50 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 4 to Chapter 39, HTSUS, states, in pertinent part:
The expression “copolymers” covers all polymers in which no single monomer contributes 95 percent or more by weight to the total polymer content.
For the purposes of this chapter, except where the context otherwise requires, copolymers (including co-polycondensates, co-polyaddition products, block copolymers and graft copolymers) and polymer blends are to be classified in the heading covering polymers of that comonomer unit which predominates by weight over every other single comonomer unit. For the purposes of this note, constituent comonomer units of polymers falling in the same heading shall be taken together.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs), constitute the official interpretation of the Harmonized System at the international level. While neither 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 the headings. It is CBP’s practice to consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The General EN to Chapter 39 states, in pertinent part:
Polymers
Polymers consist of molecules which are characterised by the repetition of one or more types of monomer units.
Polymers may be formed by reaction between several molecules of the same or of different chemical constitution. The process by which polymers are formed is termed polymerisation.
* * *
Plastics
The expression “plastics” is defined in Note 1 to this Chapter as meaning those materials of headings 39.01 to 39.14 which are or have been capable, either at the moment of polymerisation or at some subsequent stage, of being formed under external influence (usually heat and pressure, if necessary with a solvent or plasticiser) by moulding, casting, extruding, rolling or other process into shapes which are retained on the removal of the external influence.
* * *
The term “polymerisation” is used in this definition in a wide sense and denotes any method of forming a polymer, including addition polymerisation, rearrangement polymerisation (polyaddition) and condensation polymerisation (polycondensation).
* * *
EN 39.06 states, in pertinent part:
The expression “acrylic polymers” covers polymers of acrylic or methacrylic acid, of their salts or esters, or of the corresponding aldehydes, amides or nitriles.
Poly(methyl methacrylate) is the most important polymer of this category. It is used, because of its excellent optical properties and its physical strength, as a glazing material, in outdoor signs and other display articles, and in the manufacture of artificial eyes, contact lenses and artificial dentures.
* * *
There is no dispute that the instant merchandise is classifiable under heading 3906, HTSUS, which provides for “Arcylic polymers in primary forms”. The instant merchandise is a polymer, created through an aqueous suspension polymerization process. It is a copolymer, comprised of polymethyl methacrylate and ethylene glycol dimethacrylate, both of which are acrylic polymers. See
Note 4 to Chapter 39, HTSUS. Furthermore, the instant merchandise meets the definition of “primary forms” contained in Note 6(a) to Chapter 39, HTSUS, because it is imported as polymer beads suspended in liquid.
Rather, this dispute is over the proper classification of the instant merchandise at the subheading level. Therefore, GRI 6 applies, which 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.
The Port classified the instant merchandise under subheading 3906.90.20, HTSUS, after finding that it met the definition of “plastic” contained in Note 1 to Chapter 39, HTSUS. Protestant asserts that the instant merchandise does not meet this definition, and that is properly classified under subheading 3906.90.50, HTSUS.
The instant merchandise is a copolymer of poly(methyl methacrylate) and ethylene glycol dimethacrylate. See CBP Laboratory Report No. NY20122321, dated February 8, 2013. According to the Material Safety Data Sheet (MSDS) submitted with the sample by the Protestant, the merchandise consist of “> 98%” copolymer of methyl methacrylate and ethyleneglycol dimethacrylate. Therefore, the merchandise may contain up to 2% additional unidentified components. Protestant further asserted that the copolymer consist of 95% methyl methacrylate and 5% ethyleneglycol dimethacrylate. See Protestant’s Additional Submission, dated December 6, 2012.
Subheading 3906.90.20, HTSUS, provides for “Arcylic polymers in primary forms: Other: Other: Plastics”. The term “plastics” is defined in Note 1 to Chapter 39, HTSUS:
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.
Protestant asserts that this definition does not apply to the instant product, stating: “Techpolymer MBX-8 [is] an acrylic polymeric sphere that is not intended to be modified in any way and is designed for use without manipulation. As a matter of fact any modification to this would destroy the intrinsic value of the product. Techpolymer MBX-8 is manufactured using an aqueous suspension polymerization process which yields spherical microspheres.” See Protestant’s Memorandum in Support of Protest, dated August 8, 2011. Protestant concludes that the spherical shape of the micro particles is from the aqueous synthesis suspension polymerization process under the influence of surface tension and not from any external force or subsequent treatment.
Protestant describes the process of aqueous suspension polymerization in a document attached to the Protest. This document indicates that “polymerization is initiated by heat (‘water-cooled bulk polymerization’)” and that “[t]he size of the monomer droplets can be adjusted by the agitation speed, the nature and quantity of suspension stabilizers and the volume ratio of the dispersed (organic phase) and continuous phase (aqueous phase).” See Protest, dated January 13, 2012 (citing “Suspension Polymerization”, by Tu Wien, Institute of Applied Synthetic Chemistry, Vienna). However, this document actually refutes the claim that no external influences are used. According to the document submitted by Protestant, the instant product is formed under the external influences of heat and agitation. Based on Note 1 to Chapter 39, HTSUS, heat and agitation are considered external forces. Upon removal of these external forces (heat and agitation) the solid spherical shape of the polymer bead is retained. As such, the instant product meets the definition of “plastics” contained in Note 1 to Chapter 39, HTSUS, and is properly classified under subheading 3906.90.20, HTSUS.
HOLDING:
The instant Techpolymer MBX-8 is properly classified, by operation of GRI 1 and GRI 6, under heading 3906, HTSUS, specifically under subheading 3906.90.20, HTSUS, which provides for “Acrylic polymers in primary forms: Other: Other: Plastics”. The column one, general rate of duty will be 6.3% ad valorem.
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 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.
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: [email protected] or by visiting their website at www.epa.gov.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division