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