OT:RR:CTF:CPMMA H299275 KSG
TARIFF NO: 3902.90.00
Port Director
U.S. Customs and Border Protection
Port of Chicago
5600 Pearl Street
Rosemont, IL 60018
Attn: Supervisory Import Specialist (SIS) Miguel Plaza
Re: Application for Further Review of Protest No. 3901-18-100410; Classification of
Styrene-Isoprene Block Copolymer
Dear Port Director,
This is in reply to the Application for Further Review (AFR) of Protest No. 390118-
100410, dated April 9, 2018, on behalf of Kuraray America, Inc. (Protestant), contesting
U.S. Customs and Border Protection’s (CBP) classification and liquidation of an entry of
styrene-isoprene block copolymer identified as “Septon 1020” in heading 3902,
Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
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The subject entry was made on November 29, 2016. The merchandise was
entered under heading 3902, HTSUS, specifically subheading 3902.90.00, as polymers
of propylene or of other olefins. The subject entry was liquidated on October 17, 2017,
in heading 3902, HTSUS, specifically in subheading 3902.90, HTSUS, as polymers of
propylene or of other olefins. Via the AFR, Protestant contends that CBP’s Laboratories
and Scientific Services Directorate (LSSD) failed to perform proper testing of the product
and that Septon 1020 should be appropriately classified under heading 4002, HTSUS,
specifically subheading 4002.99.00, HTSUS, as synthetic rubber and factice derived
from oils.
Two CBP laboratory tests were conducted on Synthetic rubber SEPTON
1020 by the CBP Laboratory and Scientific Services Division (LSSD) on
October 28, 2015, and on August 24, 2016. In both reports the LSSD
concluded that the SEPTON did not meet the requirements of HTSUS
Chapter 40, Note 4 (a) as an unsaturated synthetic substance.
CBP agreed to a third test of the Septon 1020 on May 10, 2023. On June 28,
2023, CBP attorneys from the Regulations and Rulings Directorate (RR), Office of
Trade, had a video conference with the Protestant (counsel and scientists) and CBP
LSSD scientists to discuss the sampling and testing requirements for the Septon 1020.
The parties agreed on the tests and methodologies to be used to analyze the agreed
upon samples. The samples were received by CBP on October 10, 2023. RR received
the LSSD test report on December 21, 2023. The test results are set forth and
discussed below.
ISSUE:
Whether the instant merchandise is properly classified as polymers of propylene
or of other olefins of heading 3902, HTSUS, or synthetic rubber and factice derived from
oils of heading 4002, HTSUS.
LAW AND ANALYSIS:
The matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on
classification. The protest was timely filed, within 180 days of liquidation of the entry.
(Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429,
§2103(2)(B)(ii),(iii) (codified as amended at 19 U.S.C. § 1514(c)(3)(2006)).
Further Review of Protest No. 3901-18-100410 was properly accorded to
protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the
protest was filed is alleged to involve questions of law or fact which have not been ruled
upon by the Commissioner of Customs or his designee or by the Customs courts.
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Merchandise is classifiable under the HTSUS in accordance with the General
Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined
according to the terms of the headings 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 or notes do not require otherwise, the remaining GRIs 2 through 6 may be
applied.
The Explanatory Notes (EN) to the Harmonized Commodity Description and
Coding System represent the official interpretation of the tariff at the international level.
While neither 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, 35128 (Aug. 23,
1989).
The HTSUS provisions under consideration are as follows:
3902: Polymers of propylene or of other olefins, in primary forms:
3902.90.00: Other:
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)
4002.99.00 Other:
Note 2 to Chapter 39 states, in pertinent part:
This chapter does not cover:
(l) Synthetic rubber, as defined for the purposes of chapter 40, or articles thereof;
The EN to Chapter 39 elaborates:
Polyisobutylene when sufficiently polymerized resembles rubber but is not
classified in Chapter 40 as it does not conform to the definition of synthetic
rubber. It is used for waterproof coatings and for modifying other plastics.
Note 4 to Chapter 40 states, in pertinent part:
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In note 1 to this chapter and in heading 4002, the expression "synthetic rubber"
applies to:
(a). Unsaturated synthetic substances which can be irreversibly
transformed by vulcanization with sulfur into non-thermoplastic substances
which, at a temperature between 18°C and 29°C, 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
crosslinking, such as extenders, plasticizers and fillers, is not permitted;
EN 40.02 provides, in pertinent part:
This Note is in three parts. Whereas substances of Part (a) and (c) must comply
with the vulcanization, elongation and recovery criteria mentioned in Part (a),
thioplasts of Part (b) are exempt from these requirements. It should be noted
that the definition of synthetic rubber applies not only to heading 40.02 but also
to Note 1. Consequently, wherever the term rubber is used in the Nomenclature,
it includes synthetic rubber as defined in Note 4.
(a) Unsaturated synthetic substances, which meet the requirements
concerning vulcanisation, elongation and recovery as laid down in Part (a) of
the Note. For the purposes of the test, substances necessary for the cross-
linking, such as vulcanising activators, accelerators or retarders may be
added. The presence of small amounts of breakdown products of emulsifiers
(Note 5 (B) (ii)) and very small amounts of the special purpose additives
mentioned in Note 5 (B) (iii) is also permitted. However, the presence of any
substances not necessary for the cross-linking, such as pigments (other than
those added solely for the purpose of identification), plasticisers, extenders,
fillers, reinforcing agents, organic solvents is not permitted. Thus, the
presence of mineral oil or dioctyl phthalate is not permitted for the purpose of
the test.
This heading excludes:
(a) Elastomers which do not comply with the conditions laid down in Note 4 to this
Chapter (generally Chapter 39).
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Protestant contends that the test performed by LSSD on its dumbells contains
critical errors and faulty analysis. Protestant cites to its own testing of similar samples to
assert that the CBP lab did not properly analyze the data to detect whether or not the
sample was unsaturated and that it cannot be irreversibly transformed by vulcanization
with sulfur.
The results of the LSSD testing contained in the report, dated December 21, 2023, are
as follows:
The Septon, Septon-DB, and Septon-XLwS samples were soluble in Chloroform
at room temperature. Septon was soluble Toluene at both 40C and 70C. The
Septon- DB and Septon-XLwS samples were sparingly soluble in Toluene at both
40C and 70C. The Septon and Septon-DB exhibited thermoplastic behavior as
evidenced by softening upon heating and reheating. The Septon-XLwS charred
upon heating. The expansion of the NMR spectra in the revealed a peak around
consistent with an olefinic unsaturation. The Septon-XLwS was positive for the
presence of Sulfur via XRF and both Septon and Septon-DB were negative for
the presence of sulfur. The FTIR spectra were consistent with a
styrene/isopentyl copolymer. Both dumbbell types (Septon-DB and
SeptonXLwS) failed to meet the requirements of Note 4(a) of Chapter 40 they
were unable to be stretched to three times their length without breaking and also
broke prior to being stretched to two times their length and therefore unable to
return to their original length on the removal of the stress.
Methods Used: ASTM E1252, ASTM E1621, ASTM 412, ASTM D5226-21, and
USP 761.
“It is well settled that the methods of weighing, measuring, and testing
merchandise used by [CBP] officers and the results obtained are presumed to be
correct.” Aluminum Company of America v. United States, 60 C.C.P.A. 148, 151, 477
F.2d 1396, 1398 (1973). Absent a conclusive showing that the testing method used by
the CBP laboratory is in error, or that the CBP’s laboratory results are erroneous, there
is a presumption that the results are correct. See Exxon Corp. v. United States, 462 F.
Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (1978). In determining whether or not a
protestant has overcome CBP’s presumption of correctness, we look to American
Sporting Goods v. United States, 259 F. Supp. 2d 1302, 1308-1309 (Ct. Int’l Trade 2003)
where the court found that the importer successfully overcame the presumption of
correctness when the importer raised questions on the precision of CBP’s tests; CBP
was unable to point to any significant flaws in the importer’s test; and CBP’s laboratory
reports indicated that the case was a close call. If an outside laboratory report is
submitted that differs from the CBP laboratory report, the CBP laboratory report cannot
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be disregarded and takes precedence over the outside report. See Headquarters
Ruling Letter (HQ) 957282, dated March 28, 1995 (citing Customs Directive 099
3820002, dated May 4, 1992).
In the instant case, three different CBP Laboratory analysts conducted a full
examination of the Septon 1020 and came to the same conclusion that it is not
classifiable in Chapter 40, HTSUS. Therefore, we find that there is no evidence that
would call into question the accuracy of CBP’s laboratory report, and the Protestant has
therefore failed to overcome the presumption of correctness given to CBP’s Laboratory.
The Septon 1020 therefore is properly classified in heading 3902, HTSUS.
HOLDING:
By application of GRI 1 and GRI 6, Septon 1020 is classified in heading 3902,
HTSUS, specifically subheading 3902.90.00, HTSUS, which provides for “Polymers of
propylene or of other olefins, in primary forms: Other.” The 2020 column one, general
rate of duty is 6.5% ad valorem. The protest is hereby denied.
You are instructed to notify the Protestant of this decision no later than 60 days
from the date of this decision. Any reliquidation of the entry or entries in accordance
with the decision must be accomplished prior to this notification. Sixty days from the
date of the decision, the Office of Trade, Regulations and Rulings will make the decision
available to CBP personnel and the public on the Customs Rulings Online Search
System (“CROSS”) at https://rulings.cbp.gov/, or other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division
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