CLA-2 CO:R:C:F 088030 RFC
District Director
U.S. Customs Service
101 East Main Street
Norfolk, VA 23510
RE: Decision on Application for Further Review of Protest No.
1401-89-000053, on the classification of an acrylic polymer
product known by the brand name "Sanwet"
Dear Sir:
This is a decision on application for further review of a
protest timely filed on behalf of Hoechst Celanese Corporation, on
April 17, 1989, against your decision in the tariff classification
under the Harmonized Tariff Schedule of the United States Annotated
(HTSUSA) of an acrylic polymer product known by the brand name
"Sanwet." The product was entered under entry numbers 1026806,
1026979, and 1026980 on January 18, 1989. The entries were
liquidated on February 17, 1989.
FACTS:
The product is an acrylic copolymer powder containing 90
percent by weight of acrylic monomer (sodium acrylate) grafted with
10 percent by weight of starch. The product is stated to be
primarily used in the manufacture of baby diapers to increase urine
absorbency.
A review of the scientific literature shows that polyacrylic
acid has a relatively high degree of moisture absorption, with the
sodium salt having a lower degree of water absorption (10-15
percent by weight). Therefore, the cross-linked sodium
polyacrylate, particularly neutralized polyacrylic acid, and
acrylate-starch copolymers are all water-absorbing polymers.
Chemical abstracts (CA88:51682y) notes that substances with a high-
liquid absorption capacity for use in amounts of 0.1-5g in
disposable diapers consist of a salt of an acrylic-acid polymer
(e.g., sodium or potassium), partial salts of a polyacrylic acid,
mixed polymers of acrylic acid with cellulose or starch with a
natural gum, or a mixture of these compounds.
As polyacrylic acid, salts, and partially neutralized acid
can all be used for water absorption in diapers, a starch-grafted
acrylic polymer does not owe its water-absorption properties and
characteristics uniquely or solely to the 10 percent starch portion
found therein. Rather, it is the unneutralized acrylic acid, the
sodium acrylate, and starch that provide the copolymer with its
water-absorption properties and characteristics.
Customs classified the product under subheading 3906.90.50 as
"other acrylic polymers in primary forms." The importer contests
this classification. In initial submissions, the importer contends
that the product is properly classified under subheading 3906.90.10
as "elastomeric acrylic polymers in primary forms." In later
submissions, however, the importer contends that the product is
properly classified under subheading 3505.10 as "dextrins and other
modified starches."
ISSUE:
What is the proper tariff classification under the HTSUSA of
an acrylic copolymer powder consisting of 90 percent by weight of
acrylic monomer (sodium acrylate) grafted with 10 percent by weight
of starch?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified
under the HTSUSA. The tariff classification of merchandise under
the HTSUSA is governed by the principles set forth in the General
Rules of Interpretation (GRIs) and, in the absence of special
language or context which otherwise requires, by the Additional
U.S. Rules of Interpretation. The GRIs and the Additional U.S.
Rules of Interpretation are part of the HTSUSA and are to be
considered statutory provisions of law for all purposes. See
Sections 1204(a) and 1204(c) of the Omnibus Trade and
Competitiveness Act of 1988 (19 U.S.C. 1204(a) and 1204(c)).
GRI 1 requires that classification be determined first
according to the terms of the headings of the tariff schedule
(i.e., (1) merchandise is to be classified under the 4-digit
heading that most specifically describes the merchandise; (2) only
4-digit headings are comparable; and (3) merchandise must first
satisfy the provisions of a 4-digit heading before consideration
is given to classification under a subheading within this 4-digit
heading) and any relative section or chapter notes and, provided
such headings or notes do not otherwise require, then according to
the other GRIs.
GRI 6 prescribes that, for legal purposes, GRIs 1 to 5 shall
govern, mutatis mutandis, classification at subheading levels
within the same heading. Therefore, merchandise is to be
classified at equal subheading levels (i.e., at the same digit
level) within the same 4-digit heading under the subheading that
most specifically describes or identifies the merchandise.
The Explanatory Notes to the Harmonized Commodity Description
and Coding System (hereinafter "Harmonized System") represent the
official interpretation of the Customs Cooperation Council on the
scope of each heading. See H.R. Conf. Rep. No. 100-576, 100th
Cong., 2d Sess. 549 (1988); 23 Customs Bulletin No. 36, 3 (T.D. 89-
90, September 6, 1989), 59 F.R. 35127 (August 23, 1989). Although
not binding on the contracting parties to the Harmonized System
Convention or considered to be dispositive in the interpretation
of the Harmonized System, the Explanatory
Notes should be consulted on the proper scope of the Harmonized
System. Id.
A review of both the schedule and the classifications proposed
by the importer reveals that two chapters merit consideration in
the instant analysis: chapter 35 and 39.
Chapter 35 covers, among other things, "modified starches."
Within this chapter, the importer contends that the product is
classified under heading 3505 as a "modified starch." As indicated
above, the instant product consists of 90 percent by weight of
acrylic monomer (sodium acrylate) grafted with 10 percent by weight
of starch. Thus, the product is a polymer modified by a starch
rather than a starch modified by a polymer. Moreover, the product
does not meet the definition of or undergo a process for a modified
starch. See Explanatory Notes to Heading 35.05 to the Harmonized
Commodity Description and Coding System ("[d]extrins and other
modified starches, i.e., products obtained by the transformation
of starches through the action of heat, chemicals (e.g., acids,
alkalis) or diastase, and starch modified, e.g., by oxidation,
esterification or etherification"); Hawley's Condensed Chemical
Dictionary 1090 (1987) (a modified starch is "any of several water-
soluble polymers derived from a starch (corn, potato, tapioca) by
acetylation, chlorination, acid hydrolysis, or enzymatic action").
Clearly, then, the instant product is not properly classified under
heading 3505.
The second chapter in which the instant product may be
classified is chapter 39. This chapter covers "plastics and
articles thereof." Of special significance to the instant
classification analysis is note 4 to chapter 39:
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 which
predominates by weight over every other single comonomer,
comonomers whose polymers fall in the same heading being regarded
as constituting a single comonomer.
If no single comonomer predominates, copolymers or polymer
blends, as the case may be, are to be classified in the
heading which occurs last in numerical order among those
which equally merit consideration.
The expression "copolymers" covers all polymers in which no
single monomer contributes 95 percent or more by weight to
the total polymer content.
Chapter notes are part of the legal text of the HTSUSA and are to
be considered statutory provisions of law for all purposes. See
Sections 1204(a) and 1204(c) of the Omnibus Trade and
Competitiveness Act of 1988 (19 U.S.C. 1204(a) and 1204(c)).
Moreover, as indicated above, chapter notes, together with the
terms of the headings and section notes, are the principal
authority by which merchandise is to be classified under the
schedule. See GRI 1. Therefore, chapter notes are to be
considered mandatory authority for the classification of
merchandise under the schedule. Accordingly, copolymers are to be
classified in the heading covering polymers of that comonomer that
predominates by weight over every other single comonomer.
As discussed above, the instant product is an acrylic
copolymer powder containing 90 percent by weight of acrylic monomer
(sodium acrylate) grafted with 10 percent by weight of starch.
Therefore, in accordance with note 4 to chapter 39 and GRI 1, the
product is to be classified under the heading in chapter 39 that
most specifically describes the product, i.e., an acrylic monomer.
Heading 3906 provides for "acrylic polymers in primary forms."
Thus, the product is most specifically described by the terms of
this heading. Therefore, it is properly classified under heading
3906.
In heading 3906, there are two subheadings under which the
instant product may be potentially classified: 3906.90.10 (the
subheading under which the importer initially contended that the
product is properly classified) and 3906.90.50. Subheading
3906.90.10 provides for "elastomeric, non-polymethyl methacrylate,
acrylic polymers in primary forms." On the other hand, subheading
3906.90.50 provides for "other, non-plastic, non-elastomeric, non-
polymethyl methacrylate, acrylic polymers in primary forms" (i.e.,
those articles that are not eo nomine or specifically provided for
under heading 3906 but which are nonetheless properly classified
under this heading). Of special significance to the potential
classification of the instant product under subheading 3906.90.10
are both note 1 and Additional U.S. Note 1 to chapter 39. Note 1
to chapter 39 states, in part, that:
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.
Additional U.S. Note 1 concerns elastomeric materials. It states
that:
For the purposes of this chapter, the term "elastomeric"
means a plastics material which after cross-linking can be
stretched at 20oC to at least three times its original length
and that, after having been stretched to twice its original
length and the stress removed, returns within five minutes to
less than 150 percent of its original length. Elastomeric
plastics may also contain fillers, extenders, pigments or
rubber-processing chemicals, whether or not such plastics
material, after the addition of such fillers, extenders,
pigments or chemicals, can meet the tests specified in the
first part of this note.
Additional U.S. Notes, as with chapter notes, are part of the
legal text of the HTSUSA and are to be considered statutory
provisions of law for all purposes. See Sections 1204(a) and
1204(c) of the Omnibus Trade and Competitiveness Act of 1988 (19
U.S.C. 1204(a) and 1204(c)). Consequently, Additional U.S. Notes,
as with chapter notes, are considered mandatory authority for the
classification of merchandise under the schedule.
Laboratory analysis of a sample of the instant product shows
that it does not meet the definition for "plastics" as set forth
in note 1 to chapter 39. Consequently, the product does not also
meet the definition for "elastomeric" as set forth in Additional
U.S. Note 1. In light of the above, the instant product is not
properly classified under subheading 3906.90.10.
The remaining subheading under heading 3906 under which the
instant product may be classified is 3906.90.50. In view of the
above analysis and in accordance with GRIs 1 and 6, the product is
properly classified under this subheading.
HOLDING:
The above-described product is properly classified under
subheading 3906.90.50, HTSUSA, which provides for acrylic polymers
in primary forms, other, other, other. The general rate of duty
for goods entered under this subheading for the year 1989 is 4.2
percent ad valorem.
The protest should be denied in full. A copy of this decision
should be furnished to the protestant with the Form 19 notice of
action.
Sincerely,
John Durant, Director