Collette Schwartz, Director Supply Chain
Rhein Chemie Corporation
145 Parker Court
Chardon, OH 44024

RE: Request for Binding Ruling; Classification; Factice/Synthetic Rubber

Dear Ms. Schwartz:

This is in response to your letter dated May 18, 2009, on behalf of Rhein Chemie Corporation (“Rhein Chemie”) to United States Customs and Border Protection (“CBP”), in which you contest the denial of two Protests of two entries of certain factice under the Harmonized Tariff Schedule of the United States (“HTSUS”). Insofar as those entries have already been liquidated under subheading 3812.10.5000, we will consider your letter as a request for a binding ruling.


The subject material, referred to as “Rhenopren C” (C.A.S. 68153-37-7), is described as being a factice made from sulfurized rape-seed oil ( a heavy unsaturated oil) which is used as a rubber replacement and processing aid for improving the form and handling of uncured rubber compounds. It is said to increase the resistance to deformation of uncured rubber. Rhenopren C factice consists of finely ground granules derived from refined rape-seed oil that has been partly hydrogenated then cross linked with sulfur and hardened. Factice improves the absorption capacity of platicizers. Rhenopren C is designed to replace 25-35% of the rubber in molded and extruded surgical, household, camping and sport articles, and 20% in foodstuff quality articles. When combined with a mild abrasive, such as silca, it can be used to make erasers.

According to supplementary information provided on June 22, 2009, titled “Technical Data Sheet; Rhenopren C”, the subject Rhenopren C is said to be a factice used as a promoter in rubber compounds based on natural and synthetic elastomers which can also be used as a rubber replacement with mild reinforcing capability. The product is further described as having Grade: light yellow sulfur factice; Composition: pre-treated, pure rape seed oil and sulfur; Appearance: light yellow, finely ground; Specific Gravity: approximately 1.03; Acetone Extract: approximately 16%; Total Sulphur: 16 +/- 2%; Ash: Maximum: 0.2%. A Laboratory Analysis completed by Rhein Chemie on June 25, 2009, indicates that the Specific Gravity of the actual sample submitted is 1.051, while the Sulfur/Nitrogen content is 17.08%S and 0.81%N. The Rhein Chemie Analysis indicates that the chemical family of the subject Rhenopren C is sulfurized partially hydrogenated rape-seed oil (sulfurized vegetable oil) and a non-hazardous binder.

CBP Laboratory Report, No. NY20090927, dated August 14, 2009, states that the subject product, “Rhenopren C” (C.A.S. 68153-37-7), in the form of a brown powder, is a factice, derived from vegetable oil in primary form.


Whether the subject Rhenopren C is classifiable under heading 3812, HTSUS, as a compound plasticizer for rubber or plastics or in heading 4002, HTSUS, as a synthetic rubber or factice derived from vegetable oil.


Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods 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 GRIs 2 through 6 may then be applied in order.

The 2009 HTSUS provisions under consideration are as follows:

3812 Prepared rubber accelerators; compound plasticizers for rubber or plastics, not elsewhere specified or included; antioxidizing preparations and other compound stabilizers for rubber or plastics: 4002 Synthetic rubber and factice derived from oils, in primary forms or in plates, sheets or strip; mixtures of any product of heading 4001 with any product of this heading, in primary forms or in plates, sheets or strip: Styrene-butadiene rubber (SBR); carboxylated styrene-butadiene rubber (XSBR): 4002.1900 Other: 4002.20 Butadiene rubber (BR) 4002.99.0000 Other….

Note 3 to Chapter 40, HTSUS, provides as follows:

In headings 4001 to 4003 and 4005, the expression "primary forms" applies only to the following forms: (a) Liquids and pastes (including latex, whether or not prevulcanized, and other dispersions and solutions); (b) Blocks of irregular shape, lumps, bales, powders, granules, crumbs and similar bulk forms.

Note 4 to Chapter 40 provides, in pertinent part, that:

In note 1 to this chapter and in heading 4002, the expression "synthetic rubber" applies to:

Unsaturated synthetic substances which can be irreversibly transformed by vulcanization with sulfur into non-thermoplastic substances which, at a temperature between 18EC and 29EC, will not break on being extended to three times their original length and will return, after being extended to twice their original length, within a period of 5 minutes, to a length not greater than 1-1/2 times their original length. For the purposes of this test, substances necessary for the cross-linking, such as vulcanizing activators or accelerators, may be added; the presence of substances as provided for by note 5(b)(ii) and (iii) is also permitted. However, the presence of any substances not necessary for the cross-linking, such as extenders, plasticizers and fillers, is not permitted [.]

Note 1 (a) to Chapter 38 provides, in pertinent part, that:

This chapter does not cover:

(a) Separately chemically defined elements or compounds…

* * * The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not 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 (August 23, 1989).

The definition of “rubber” is provided, in relevant part, in the General ENs to Chapter 40, HTSUS, as follows:

Definition of rubber

The expression rubber is defined in Note 1 to this Chapter. Where this expression is used without qualification in this and other Chapters of the Nomenclature, it means the following products:

(2) Synthetic rubber as defined in Note 4 to this Chapter.

(3) Factice derived from oils (see the Explanatory Note to heading 40.02)

Factice derived from oils – Factice is the product of the reaction of certain vegetable or fish oils (whether or not oxidized or partly hydrogenated) with sulphur or sulphur chloride.

Factice is physically weak and is used mainly compounded with natural or synthetic rubber; and also for the manufacture of erasers.

The ENs to heading 3812, HTSUS, provide in relevant part, that:

For the purposes of this heading, the terms “compound”, “prepared” and “preparation” include:

Deliberate mixtures and blends; and

Reaction mixtures including products produced from a homologous series such as fatty acids or alcohols of heading 38.23.

(B) Compound plasticisers for rubber or plastics, not elsewhere specified or included.

This category covers compound plasticisers which are used to provide a desired degree of flexibility to plastics or to increase the plasticity of the rubber mix. Examples of these types of products include deliberate mixtures of two or more phthalate esters as well as diakyl phthalates produced from mixed fatty alcohols of heading 38.23. Plasticiers are used extensively with poly(vinyl chloride) and with cellulose esters.

You contend that the subject Rhenopren C is classifiable under heading 4002, HTSUS, “because the material in question is a factice made from sulfurized rape-seed oil” and because the terms of heading 4002, HTSUS, include factice derived from oil, whereas heading 3812, HTSUS, does not provide for such products by name. You further argue that according to Note 4 to Ch. 40, HTSUS and the ENs to Ch. 40, HTSUS, the instant factice is separate and distinct from “synthetic rubber.” Instead, you argue that the subject Rhenopren C meets the description set forth in Note 3 to Ch. 40, HTSUS, rather than the definition of “synthetic rubber” in Note 4 to Ch. 40, HTSUS. You contend that factice is a “cross-linked vegetable oil of a relative low molecular weight and short chain length as opposed to synthetic which is a non-cross linked long chain polymer.” You further argue that factice is distinct from synthetic rubber because “factice molecules are so small that they do not form a rubbery solid even when cross-linked.” Lastly, you contend that Rhenopren C is excluded from heading 3812, HTSUS, by operation of Note 1 (a) to Ch. 38, HTSUS, because you conclude that Rhenopren C is not a preparation.

Factice is provided for eo nomine in heading 4002, HTSUS. An eo nomine designation is one which describes a commodity by a specific name, usually one well known in commerce. U.S. v. Bruckman, 582 F.2d 622, 65 C.C.P.A. 90, C.A.D. 1211 (1978). Similarly, an eo nomine designation without limitation or a contrary legislative intent, will include all forms of the article. Sabritas v. U.S., 998 F. Sup. 1123, 22 CIT 59 (1998). Furthermore, heading 3812, HTSUS, provides in relevant part, for: “…compound plasticizers for rubber or plastics, not elsewhere specified or included…” Accordingly, if the instant merchandise is prima facie classifiable in heading 4002, HTSUS, it cannot be classifiable in heading 3812, HTSUS.

According to the CBP Lab Report, the instant merchandise is a factice. The chemical and physical properties of the instant merchandise, according to the CBP Lab Report, indicate that the product is a brown powder derived from vegetable oil (sulfurized rape-seed oil). Furthermore, the merchandise meets the description set forth in the ENs to Ch. 40, HTSUS, and conforms to the definition set forth in U.S. Note 3 to Ch. 40, HTSUS, as it is derived from vegetable oil in its primary form (powder) which is weak, used as a mild reinforcement to rubber and is also used to maker erasers. Because the factice is pre-cross linked and will not add to the polymer’s cross link density, we agree that the instant merchandise does not meet the terms of Note 4 (a) to Ch. 40, HTSUS.

Based on the facts presented and the CBP Laboratory analysis, the subject Rhenopren C is not a compound plasticizer for rubber or plastics within the meaning of heading 3812, HTSUS, as it is a reaction product of a single vegetable oil, does not meet the description of a deliberate mixture or blend and is not the reaction of two or more fatty acids or alcohols as described in EN 38.12 (B).


By application of GRI 1 and Note 3 to Chapter 40, HTSUS, the Rhenopren C (C.A.S. 68153-37-7) is classifiable under heading 4002, HTSUS. Specifically, the material is classified under subheading 4002.99.0000, HTSUS, which provides for “Synthetic rubber and factice derived from oils, in primary forms or plates, sheets or strips; mixtures of any product of heading 4001 with any product of this heading, in primary form or in plates, sheets or strip: Other: Other.” The 2009 column one, general rate of duty is Free.

Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at A copy of this ruling letter should be attached to entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.


Gail A. Hamill, Chief
Tariff Classification and Marking Branch