CLA-2 RR:CR:GC 964854AM
U.S. Customs Service
4341 International Parkway Suite 600 Atlanta, GA 30354
Re: Protest 1704-00-100209; Nelfilcon polymer solution
Dear Port Director:
This is in regard to protest 1704-00-100209, filed by counsel for Ciba Vision Corporation, concerning your classification of Nelfilcon polymer solution under the Harmonized Tariff Schedule of the United States (HTSUS). In preparing this decision we considered arguments raised by protestant's counsel, in a telephone conference on February 27, 2002 and in a supplemental submission dated March 11, 2002.
The subject merchandise, Nelficon polymer solution, is an acetylized polyvinyl alcohol (PVA), wherein the acetyl group of the added substance is chemically attached to the hydroxyl-group appendage of the main PVA chain. The molar ratio of PVA in the acetylized PVA is 95%. The subject merchandise is used by the company in the manufacture of contact lenses. Customs Laboratory Report 4-2000-50385, dated December 12, 2000, confirms the following: " the sample is a blue colored gelatinous solid. Laboratory analysis and information from the importer indicate that the sample is a chemically modified polyvinyl alcohol polymer."
The merchandise was entered February 20, 1999, and classified in subheading 3905.12.00, HTSUS, the provision for "[P]olymers of vinyl acetate or of other vinyl esters, in primary forms; other vinyl polymers in primary forms: [P]olyvinyl acetate: in aqueous dispersion." The entry was liquidated on April 14, 2000, under subheading 3905.99.80, HTSUS, the provision for "[P]olymers of vinyl acetate or of other vinyl esters, in primary forms; other vinyl polymers in primary forms: Other: Other: Other." A protest, claiming correct classification in subheading 3905.30.00, HTSUS, the provision for the provision for "[P]olymers of vinyl acetate or of other vinyl esters, in primary forms; other vinyl polymers in primary forms: [P]olyvinyl alcohols, whether or not containing unhydrolyzed acetate groups,” was timely filed on July 11, 2000.
What is the classification of Nelficon polymer solution?
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 and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to the GRIs.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUS provisions under consideration are the following:
3905 Polymers of vinyl acetate or of other vinyl esters, in primary forms; other vinyl polymers in primary forms:
3905.30.00 Polyvinyl alcohols, whether or not containing unhydrolyzed acetate groups
* * * * *
Other [than Polyvinyl acetate, Vinyl acetate copolymers, or Polyvinyl alcohols, whether or not containing unhydrolyzed acetate groups]
* * * * * * *
3905.99 Other [than Copolymers]
3905.99.80 Other [than Polyvinyl carbazole]
Subheading Note 1 to Chapter 39, HTSUS, states, in pertinent part, the following:
Within any one heading of this Chapter, polymers (including copolymers) and chemically modified polymers are to be classified according to the following provisions:
(a) Where there is a subheading named “Other” in the same series: . . .
Chemically modified polymers are to be classified in the subheading named “Other”, provided that the chemically modified polymers are not more specifically covered by another subheading.
The General ENs to Chapter 39 state, in pertinent part, the following: “[C]hemically 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 (see Note 5 to this Chapter). . . . .”
EN 39.05 states, in pertinent part, the following: “[P]olyvinyl alcohol is usually prepared by the hydrolysis of polyvinyl acetate. Polyvinyl alcohols are available in a number of grades depending upon the content of unhydrolysed vinyl acetate groups.” (Emphasis added).
It is undisputed that Nelfilcon polymer solution is a vinyl polymer in primary form classifiable in heading 3905, HTSUS. Only the subheading classification is in dispute. Therefore, Chapter 39, note 5, which states that "[C]hemically modified polymers . . . are to be classified in the heading appropriate to the unmodified polymer," is not relevant to this situation (emphasis added).
It is also undisputed that PVA is a polymer resulting from chemical modification of polyvinyl acetate. The instant substance is a chemically modified PVA in that an alcohol functional group, on the appendage of the PVA chain, is chemically reacted with the acetyl functional group of another substance.
Counsel for the protestant makes two arguments for classification as polyvinyl alcohol. First, counsel argues that Subheading Note 1(a)(3) does not direct that modified polymers, which are specifically named, and which themselves have been modified, are classified in the subheading named “Other.” Second, counsel states that the instant substance is not a chemically modified PVA, but is rather another “form” of PVA, specifically provided for in subheading 3905.30.00 as a PVA. Counsel supports this argument by claiming that the subheading names polyvinyl alcohols (plural) which means that it must have contemplated different “forms” of PVA such as the instant merchandise. Counsel also claims that Headquarters Ruling (HQ) 957983, dated June 15, 1999, could have, but did not, hold that a chemically modified form of PVA was not classified in the specific provision for PVA.
As to counsel’s first argument, EN 39.05 explains that “Polyvinyl alcohol is usually prepared by the hydrolysis of polyvinyl acetate.” At this point, there exists a new polymer called PVA. The HTSUS lists PVA and “other” in the same series. The instant product, acetylized PVA, is described as a polyvinyl alcohol that has been chemically modified by an acetyl group appendage of the main polyvinyl alcohol chain. By application of Subheading Note 1(a)(3), the instant product is classified as other than PVA in subheading 3905.99.80, HTSUS, because it is a chemically modified polymer not specifically described by any previous subheading in that series. If the importer could use an unmodified PVA for the manufacture of contact lenses, it would have done so. Rather, the importer needs a product that is something other than PVA, namely acetylized PVA. Hence, the importer admits that the instant merchandise is "other than PVA."
As to counsel’s second argument, EN 39.05 explains the plural “polyvinyl alcohols” thus: “Polyvinyl alcohols are available in a number of grades depending upon the content of unhydrolysed vinyl acetate groups.” In other words, at the moment of hydrolysing the polyvinyl acetate into PVA, many different forms of polyvinyl alcohol could result depending upon the number of vinyl acetate groups hydrolysed. The instant product results from a distinct modification of one of the forms of PVA. It is not a form of PVA itself, but rather a chemically modified acetylized PVA. HQ 957983 is not relevant to this situation. It discusses a copolymer containing a PVA. The PVA subject to that ruling is not modified so much as it is combined with another polymer. A copolymer is analyzed under a different portion of Subheading note 1 and is not relevant to our analysis here.
Applying Subheading note 1(a)(3) to classification of the instant merchandise results in classification in subheading 3905.99.80, HTSUS, the provision for "other vinyl polymers in primary forms.”
Nelfilcon polymer solution is classified in subheading 3905.99.80, the provision for "[P]olymers of vinyl acetate or of other vinyl esters, in primary forms; other vinyl polymers in primary forms: [O]ther: [O]ther: [O]ther.” The protest is DENIED.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
John Durant, Director
Commercial Rulings Division