CLA-2 OT:RR:CTF:TCM H262287 NCD
Patti Cordo
Director of Import
American Cargo Express, Inc.
2345 Vauxhall Rd.
Union, NJ 07083
RE: Revocation of NY N255361; classification of JEFFAMINE® D-2000
Dear Ms. Cordo:
This is in reference to your letter of December 29, 2014, submitted on behalf of Huntsman Petrochemical LLC (“Huntsman”), requesting reconsideration of New York Ruling Letter (NY) N255361, dated August 13, 2014. NY N255361 was issued to Huntsman by U.S. Customs and Border Protection (CBP) in response to Huntsman’s July 17, 2014 request for a ruling as to the proper classification of the JEFFAMINE® D-2000 under the Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed NY N255361, have determined that it is incorrect, and, for the reasons set forth below, are revoking that ruling.
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 of the proposed action was published in the Customs Bulletin, Vol. 50, No. 24, on June 15, 2016. No comments were received in response to the notice.
FACTS:
NY N255361 contains the following description of JEFFAMINE® D-2000 excerpted from a technical bulletin for the product:
JEFFAMINE D-2000 polyoxypropylenediamine (CAS-9046-10-0) is a member of a family of polyamines having repeat oxypropylene units in its backbone. It is a difunctional primary amine with an average molecular weight of approximately 2000. Its amine groups are located on secondary carbon atoms at the ends of an aliphatic polyether chain.
A more recent technical bulletin for JEFFAMINE® D-2000 states as follows:
JEFFAMINE D-2000 polyetheramine is characterized by repeating oxypropylene units in the backbone. As shown by the representative structure, JEFFAMINE D-2000 polyetheramine is a difunctional, primary amine with average molecular weight of about 2000. The primary amine groups are located on secondary carbon atoms at the end of the aliphatic polyether chains.
The “representative structure” referenced in this excerpt is depicted below:
In NY N255361, CBP classified JEFFAMINE® D-2000 in heading 3911, HTSUS, specifically in subheading 3911.90.90, HTSUS, 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: Other.”
ISSUE:
Whether JEFFAMINE® D-2000 is properly classified in heading 3907, HTSUS, as an “other” polyether, or in heading 3911, HTSUS, as an “other” product specified in Note 3 to Chapter 39.
LAW AND ANALYSIS:
Merchandise imported into the United States 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 requires otherwise, 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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading 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 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 these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (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:
3911.90.90 Other
Heading 3907, HTSUS, provides, inter alia, for “other” polyethers. Note 3 to Chapter 39 states, in relevant part, as follows:
Headings 39.01 to 39.11 apply only to goods of a kind produced by chemical synthesis, falling in the following categories…
(c) Other synthetic polymers with an average of at least 5 monomer units….
Note 5 to Chapter 39 states as follows:
Chemically modified polymers, that is those in which only appendages to the main polymer chain have been changed by chemical reaction, are to be classified in the heading appropriate to the unmodified polymer. This provision does not apply to graft copolymers.
Note 6 to Chapter 39 states as follows with respect to “primary forms”:
In headings 3901 to 3914, the expression "primary forms" applies only to the following forms:
Liquids and pastes, including dispersions (emulsions and suspensions) and solutions;
Blocks of irregular shape, lumps, powders (including molding powders), granules, flakes and similar bulk forms.
Pursuant to Note 3 to Chapter 39, heading 3907 applies to, among other products, synthetic polymers with an average of at least five monomer units. While a definition of ”polymer” is absent from the HTSUS, the General EN to Chapter 39 describes “polymers” within the meaning of Note 3 to Chapter 39 as “molecules which are characterised by the repetition of one or more types of monomer units.” See also Richard J. Lewis, Sr., Hawley’s Condensed Chemical Dictionary 1013 (15th ed. 2007) (defining “polymer” as “a macromolecule formed by the chemical union of five or more identical combining units called monomers”) [hereinafter Hawley’s] .
With respect to the specific types of polymers classifiable in heading 3907, EN 39.07 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…
Here, the technical bulletins pertaining to JEFFAMINE® D-2000 indicate that the product is in liquid form. It is consequently in a “primary form” pursuant to Note 6 to Chapter 39. Moreover, the technical bulletins and included representative structure indicate that JEFFAMINE® D-2000 contains, on average, thirty-three oxypropylene units as its repeating monomer units. Therefore, JEFFAMINE® D-2000 both meets the definition of a polymer and satisfies Note 3(c) to Chapter 39. Because its repeating units are oxypropylene monomers, it is, prior to any modification, a polyoxypropylene, which is specifically identified in EN 39.07 as an “other” polyether classifiable in heading 3907. While the original polyoxypropylene has in fact been modified to the effect that its appendages contain amine groups, Note 5 to Chapter 39 requires that JEFFAMINE® D-2000 be classified as if it were an unmodified polymer. As a chemically modified polyoxypropylene, JEFFAMINE® D-2000 is therefore classifiable as an “other” polyether in heading 3907, HTSUS. See NY N242035, dated June 14, 2013; NY N116392, dated August 5, 2010; and NY 804057, dated December 7, 1994 (all classifying polyoxypropylene derivatives in heading 3907, HTSUS).
We next consider whether JEFFAMINE® D-2000 is classifiable in heading 3911, HTSUS, which provides for “other products specified in note 3 to [Chapter 39], not elsewhere specified or included, in primary forms.” As discussed above, JEFFAMINE® D-2000 is in a primary form pursuant to Note 6 to Chapter 39, and can be described as “a polymer with an average of at least 5 monomer units” within the meaning of Note 3(c) to Chapter 39. It is therefore prima facie classifiable in heading 3911, HTSUS. However, because JEFFAMINE® D-2000 is more specifically described by heading 3907 as a particular type of polymer, i.e., a polyether, it is properly classified in heading 3907, HTSUS, rather than in heading 3911, HTSUS. See R.T. Foods, Inc. v. United States, 757 F.3d 1349, 1354 (Fed. Cir. 2014) (stating that a provision that contains the terms “not elsewhere specified or included” is a basket provision, in which classification of a given product “is only appropriate if there is no tariff category that covers the merchandise more specifically”).
HOLDING:
By application of GRI 1, JEFFAMINE® D-2000 is properly classified in heading 3907, HTSUS. It is specifically classified in subheading 3907.20.0000, HTSUSA (Annotated), which provides for: “Polyacetals, other polyethers and epoxide resins, in primary forms; polycarbonates, alkyd resins, polyallyl esters and other polyesters, in primary forms: Other polyethers.” The 2016 column one general 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 the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
New York Ruling Letter N255361, dated August 13, 2014, is hereby REVOKED in accordance with the above analysis.
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