CLA-2 RR:TC:FC 955405 ALS
Port Director of Customs
U.S. Customs Service
1 East Bay St.
Savannah, GA 31401
RE: Request for Further Review of Protest 1703-93-100152, Dated October 20, 1993, Concerning the classification OTA-480
Dear Port Director:
This ruling is on a protest that was filed against a
decision of July 23, 1993, concerning the classification of the
Based on information received from the manufacturer, OTA-480
is a reaction product of glycerol and 2-methyl-1,2 ethandiol to
form glycerol propoxylate and a further reaction of glycerol
propolylate with acrylic acid to form OTA-480, an acrylic
modified polyether polyol. It is a mixture of different chemical
compounds resulting from the reactions of the above processes.
The product contains 19 different products, all of which, are
different combinations of glycerol, propoxy and acrylic monomer
units. The product is used in the manufacturer of inks,
adhesives and coatings. The importer believes that the product
is an ester of acrylic acid classifiable in subheading
2916.12.5000, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA). The product was liquidated in subheading
3906.90.2000, HTSUSA, which provides for acrylic polymers in
- 2 -
What is the classification of the instant product which is
used in inks, adhesives and coatings?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules Of Interpretation (GRI's) taken in order.
GRI 1 provides that the classification is determined first in
accordance with the terms of the headings and any relative
section and chapter notes. If GRI 1 fails to classify the goods
and if the headings and legal notes do not otherwise require, the
remaining GRI's are applied, taken in order.
Counsel for the importer suggests that the product is
classifiable in subheading 2916.12.5000, HTSUSA, as a separate
chemically defined compound. It alternatively suggests that the
product should be considered as a miscellaneous chemical mixture
under subheading 3823.90.5000, HTSUSA.
In considering this matter we note that the product is a
rather complex mixture of different monomer combinations
containing a good number of crosslinking sites at the double bond
at the acrylic end of the molecules. We note that Customs had
concluded that this product had the chemical and structural
characteristics of a typical resin prepolymer and that it fell
within the definition of a "prepolymer" as stated in Note 3(e) to
Chapter 39, HTSUSA. These products could be cured by various
methods, i.e., heat (thermoset) UV light (OTA-480) or chemical
(catalytic) reaction (epoxy).
Counsel for the importer indicates that OTA 480 is a
chemically defined compound consisting of essentially 7
compounds, all formed simultaneously as co-products in the same
chemical reaction. Counsel notes that only 34 percent of these
compounds is the desirable product and that the product should be
considered as a separately chemically defined compound based
thereon. The remaining 66 percent of the product is stated to be
undesirable byproducts or impurities which have an adverse effect
on the physical properties of the finished polymer and are not
intended for a specific purpose. Counsel also notes that
repeating monomer units, typical of a prepolymer, occur in only
28 percent of the product, a portion which is only 7 percent by - 3 -
weight of the final product. Based on the above, counsel
suggests that classification in subheading 2916.12.5000, HTSUSA,
is appropriate. Alternatively, It suggests, without detailed
argument, that the product should be classified in subheading
3823.90.5000, HTSUSA, as a mixture of polyethylene glycols.
After consideration of the information and documentation
submitted by counsel, we note that the essence of the importer's
position is that the ingredients which are unwanted because they
do not form the optimal form of the propoxylate for cross linking
are impurities. It is claimed that these impurities are
dysfunctional and not the best form of the propoxylate for the
purposes of cross linking. We, however, note that the stated
"impurities" react with the polymer chains during the curing
process and become part of the final cross-linked polymer. They
obviously give the final product a number of properties, whether
good, bad, or not as good as it could be. In other words these
items have a definite influence on the physical properties of the
final product. Therefore, we do not agree that these ingredients
which are actively involved in the chemical and physical aspects
of the OTA 480 can be characterized as "impurities." In this
regard they are dissimilar to "impurities" otherwise noted in the
Explanatory Notes to the Harmonized System (EN), e.g., Chapter
25. The product must be looked at as a whole, including the main
ingredients and six lesser ingredients.
We do not agree with a technical expert for the importer
that the Scientific Sub-Committee (SC) of the World Customs
Organization has given a very broad scope to the term
"impurities." While no definitive allowable percentages of
"impurities" exists for separate chemically defined compounds, we
believe that it is clear at both the international level and the
domestic level that such products should only have minor amounts
of impurities. Normally a product that is less than 90 percent
pure would not be classifiable in chapter 29, HTSUSA, since, as
the amount of impurities increase, the influence of their
characteristics on the primary compound also increase.
Impurities above that level are, as in the instant case, more
likely to become a functional part of the mixture. We find it
extremely difficult to agree with the argument that 66 percent of
an expensive separate chemically defined chemical compound is
incidentally present. Particularly, since these "impurities"
cross-link into the final plastic and attached to the polymer.
The properties added by these large amounts of "impurities" may - 4 -
be somewhat less than what is wanted but they have a direct
impact on the properties of the cross-linked plastic.
Accordingly, we believe that the suggested classification in
subheading 2916.12.5000, HTSUSA, is not appropriate.
We understand that the product contains repeating units and
is designed to be transformed into a higher molecular weight
polymer through further polymerization or curing. Thus the
products meets the Chapter 39 definition of a prepolymer. While
the most desirable portion of the product does not, as indicated
by counsel, have repeating units, we find no basis for ignoring
ingredients that form 66 percent of the product. The number of
repeating units is averaged over the entire product and not just
the repeating chain. Thus, as in the instant case the repeating
unit number may be relatively low, i.e., less than 2. This is
consistent with General Note (e) to heading 39.01 to 39.11 of the
EN which provides that prepolymers are products which are
characterized by some repetition of monomer units.
We have concluded that the product is properly classifiable
as a prepolymer. Based thereon, we find it unnecessary to
address a suggested alternate classification of chapter 38,
A product formed by a chemical reaction which produces
glycerol propoxylate and a further reaction with acrylic acid to
form an acrylic modified polyether polyol, is considered a
prepolymer and is classifiable in subheading 3907.20.0000,
HTSUSA, which provides for other polyethers in primary form.
Merchandise so classifiable is subject to a general rate of duty
of 1.8 cents per kilogram and 7.5 percent ad valorem.
Since the rate if duty under the classification indicated
above is more than the liquidated rate, you are instructed to
deny the protest in full.
A copy of this ruling should be attached to the Customs Form
19 and provided to the protestant as part of the notice of action
on the protest.
In accordance with Section 3A(1)(b) of Customs Directive 099
3550-065, dated August 4, 1993, Subject: Revised Protest - 5 -
Directive, this decision should be provided by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with this decision
must be accomplished prior to the mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.
John Durant, Director