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HQ 089564

November 7, 1991

CLA-2 CO:R:C:F 089564 EAB


TARIFF NO.: 3902.30.0000

District Director
U.S. Customs Service
300 South Ferry Street
San Pedro, California 90731

RE: Application for Further Review of Protest No. 2704-91- 101278, dated March 13, 1991, liquidated December 21, 1990, concerning Visnex XLM-12; ethylene-propylene copolymer

Dear Sir:

This is a decision on a protest filed March 13, 1991, against your decision in the classification of merchandise liquidated December 14, 1990, December 21, 1990, December 28, 1990 and January 11, 1991.


The protestant entered the goods under subheading 3811.29.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), a provision for viscosity improvers for mineral oils (including gasoline), additives for lubricating oils, other, dutiable at the general rate of 7 percent ad valorem. The goods were reclassified under subheading 3902.30.0000,a provision for primary form polymers of propylene, propylene copolymers, and the rate was advanced to 2.2 per kilogram plus 7.7 percent ad valorem.

According to Customs laboratory analysis and information from the importer, the sample, a block of a clear, semitransparent substance, is an ethylene-propylene copolymer in which no single comonomer predominates, in primary form, classifiable in consideration of Note 4, chapter 39, HTSUSA.

In its imported form, the product is not itself an additive for a lubricating oil, but is the principal ingredient of an additive for a lubricating oil.


What is the proper classification under the HTSUSA of ethylene-propylene copolymer in primary form?


Merchandise imported into the U.S. 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.

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 GRI's taken in order.

Heading 3811, HTSUSA, is a use provision. Additional U.S. Rule of Interpretation 1(a) requires in part that a tariff classification controlled by use is to be determined in accordance with the use in the U.S. at, or immediately prior to, the date of importation. The subject merchandise is a solid block of plastic that is not used in its imported condition as a mineral oil additive.

We are of the opinion that the subject goods are properly classifiable under heading 3902.30.0000, HTSUSA.


The protest should be denied.

Ethylene-propylene copolymer in primary form is classifiable under subheading 3902.30.0000, HTSUSA, a provision for primary form polymers of propylene, propylene copolymers. Entries of this merchandise classified under this subheading for the years 1990 and 1991 are dutiable at the rate of 2.2 per kilogram plus 7.7 percent ad valorem.

A copy of this decision should be attached to the Customs Form 19 and mailed to the protestant as part of the notice of action on the protest.


John Durant, Director

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