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HQ 962731





October 22, 2001

CLA-2 RR:CR:GC 962731 AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 3812.30.90

Port Director
U.S. Customs Service
200 East Bay Street
Charleston, SC 29401

RE: Chimassorb 944™ (CAS #70624-18-9) Protest 1601-00-100139

Dear Port Director:

This is our decision on Protest 1601-00-100139, filed by Ciba Specialty Chemicals Corporation (“Ciba”) against your decision in the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of Chimassorb 944™ (CAS #70624-18-9). In preparing this ruling, consideration was given to supplemental submissions filed by counsel dated July 11, 2000 and June 7, 2001.

A pre-entry classification determination (PC) 871594, issued to Ciba-Geigy, on March 4, 1992, classified Chimassorb 944™ (CAS 71878-99-8), under subheading 3911.90.50, HTSUS (1992), which corresponds to subheading 3911.90.90, HTSUS (2000), the provision for "[P]etroleum resins, coumarone-indene resins, poly-terpenes, polysulfides, polysulfones and other products specified in note 3 to this chapter, not elsewhere specified or included, in primary forms: [O]ther: [O]ther: [O]ther."

Customs has recently become aware of a conflict between the classification of Chimassorb 944™ in PC 871594, and New York Ruling Letter (NY) 817470, of March 7, 1996, which classified identical merchandise in subheading 3911.90.25, HTSUS, the provision for "[P]etroleum resins, coumarone-indene resins, poly-terpenes, polysulfides, polysulfones and other products specified in note 3 to this chapter, not elsewhere specified or included, in primary forms: [O]ther: [C]ontaining monomer units which are aromatic or modified aromatic, or which are obtained, derived or manufactured in whole or in part therefrom: [T]hermoplastic: [O]ther." The determination in NY 817470 was based on Customs laboratory report no. 2-1996-20813, dated February 9, 1996, which states:

2933.69.6030 HTS - if 5 or less monomer units a nitrogen heterocyclic compound with an unfused riazine (sic) ring used principally for rubber processing. 3911.90.2500 HTS - if greater than 5 monomer units a polymer containing monomer unit partially derived from an aromatic source, thermoplastic, other.

According to Ciba’s submission, dated July 11, 2000, Chimassorb 944™ (CAS 70624-18-9), has been reformulated into a product with different attributes than the product ruled upon in both PC 871594 and NY 817470. Specifically, the newly synthesized product contains fewer than five monomer units on average. This ruling addresses only the formulation known as Chimassorb 944™ (CAS 70624-18-9). NY 817470, supercedes the preclass ruling and continues to represent the correct classification of Chimassorb 944™ (CAS 71878-99-8). To satisfy its burden of reasonable care, an importer of Chimassorb 944™ claiming classification in subheading 3812.30.90, HTSUS, must show that its merchandise is Chimassorb 944™ (CAS 70624-18-9), in accordance with the foregoing ruling.

FACTS:

The entry pertaining to the subject protest was liquidated on June 9, 2000. The protest was timely filed on August 4, 2000.

The subject product, Chimassorb 944™ has the CAS registry name of poly((6-((1,1,3,3-tetramethylbutyl)amino)-1,3,5-triazine-2,4-diyl) ((2,2,6,6-tetramethyl-4-piperidinyl)imino)-1,6-hexanediyl((2,2,6,6-tetramethyl-4-piperidinyl)imino)), and the CAS registry number 70624-18-9. The product is produced under high pressure and temperature to form mixtures of high molecular weight oligomeric hindered amine compounds. The newly synthesized product contains fewer than five monomer units on average. The merchandise is used as an ultraviolet-light stabilizer for plastics.

ISSUE:

What is the proper tariff classification of Chimassorb 944™ (CAS

LAW AND ANALYSIS:

Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context that requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS 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 GRIs taken in order. GRI 3 requires that when goods are prima facie classifiable under two or more headings, the most specific description is preferred, and if neither is more specific, that heading which describes the essential character of the merchandise or, if none, occurs last in numerical order is used. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs. Further, only those subheadings at the same level of indentation are comparable. In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The following headings are relevant to the classification of this product:

2933 Heterocyclic compounds with nitrogen hetero-atom(s) only: Compounds containing an unfused triazine ring (whether or not hydrogenated) in the structure:

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.

Petroleum resins, coumarone-indene resins, poly-terpenes, polysulfides, polysulfones and other products specified in note 3 to this chapter, not elsewhere specified or included, in primary forms:

Chapter Note 1 to Chapter 29, HTSUS, states, in pertinent part, that "[E]xcept where the context otherwise requires, the headings of this chapter apply only to: (a)[S]eparate chemically defined organic compounds, whether or not containing impurities; . . . ." EN 38.12 states, in pertinent part, the following: "The heading excludes . . . (e)Polymers of Chapter 39." Chapter Note 3 to Chapter 39, HTSUS, states, in pertinent part, that "[H]eadings 3901 and 3911 apply only to goods of a kind produced by chemical synthesis, falling in the following categories: . . .(c)[O]ther synthetic polymers with an average of at least five monomer units: . . ."

Heading 3812, HTSUS, is a principal use provision, whereas headings 2933 and 3911, HTSUS, are descriptive provisions. At GRI 3(a), "a provision which describes an importation by its use is more specific than one which provides for an importation by general description." E.M. Chemicals v. U.S., 728 F.Supp. 723, 727 (1989). Therefore, if heading 3812, HTSUS, describes the merchandise, it is correctly classified in that heading. We note that Customs laboratory report no. 2-1996-20813 confirms that the merchandise is "used principally in rubber processing."

The court in E.M. Chemicals v. United States, 20 C.I.T. 382, 923 F. Supp. 202 (1996 Ct. Intl. Trade) explained the application of principal use provisions thus:

When applying a "principal use" provision, the Court must ascertain the class or kind of goods which are involved and decide whether the subject merchandise is a member of that class. See supra Additional US Rule of Interpretation 1 to the HTSUS. In determining the class or kind of goods, the Court examines factors which may include: (1) the general physical characteristics of the merchandise; (2) the expectation of the ultimate purchasers; (3) the channels of trade in which the merchandise moves; (4) the environment of the sale (e.g., the manner in which the merchandise is advertised and displayed); (5) the usage of the merchandise; (6) the economic practicality of so using the import; and (7) the recognition in the trade of this use. United States v. Carborundum Co., 63 C.C.P.A. 98, 102, 536 F.2d 373, 377, cert. denied, 429 U.S. 979, 50 L. Ed. 2d 587, 97 S. Ct. 490 (1976); see also Lenox Coll., 20 C.I.T., Slip Op. 96-30, at page 5.

Applying the Carborundum factors above to the language of the heading, " . . . [substances principally used as] other compound stabilizers for . . . plastics," include hindered amine compounds. According to technical literature, hindered amine compounds are a recognized chemical class of light stabilizers and are classified as having a radical scavenger mode of action. Further, hindered amine light stabilizers (HALS) all have a 2,2,6,6-tetramethylpiperidine ring in their chemical structure. Ullmann’s Encyclopedia of Industrial Chemistry, v. A20, 5th ed. In the instant case, Chimassorb 944, CAS 70624-18-9, does, indeed, have this chemical moiety, and in addition, is specifically cited in technical literature as a HALS exemplar. Therefore, the merchandise at issue belongs to the class or kind of goods that are principally used as stabilizers for plastics and are therefore classifiable in heading 3812 using GRI 1.

According to information supplied by Ciba, Chimassorb 944™ (CAS 70624-18-9) is not a polymer. Therefore, it is precluded from classification in Chapter 39 (Note 3(c) to Chapter 39). Furthermore, classification of the present Chimassorb 944™ (CAS 70624-18-9), in Chapter 29 is excluded because the substance is not a "separate chemically defined organic compound[s]" or any of the other items specifically included in Chapter 29. (Note 1 to Chapter 29). Hence, there are no competing headings to consider for Chimassorb 944™ (CAS 70624-18-9), and the merchandise is correctly classified in heading 3812, HTSUS, at GRI 1.

At GRI 6, the substance is classified in subheading 3812.30.90, HTSUS, the provision for "[P]repared rubber accelerators; compound plasticizers for rubber or plastics, not elsewhere specified or included; antioxidizing preparations and other compound stabilizers for rubber or plastics: [A]ntioxidizing preparations and other compound stabilizers for rubber or plastics: [O]ther: [O]ther."

HOLDING:

The protest is ALLOWED for Chimassorb 944™ (CAS 70624-18-9). This merchandise is classified in subheading 3812.30.90, HTSUS. However, Chimassorb 944™ (CAS 71878-99-8) continues to be classified in accordance with NY 817470, in subheading 3911.90.25, HTSUS, the provision for "[P]etroleum resins, coumarone-indene resins, poly-terpenes, polysulfides, polysulfones and other products specified in note 3 to this chapter, not elsewhere specified or included, in primary forms: [O]ther: [C]ontaining monomer units which are aromatic or modified aromatic, or which are obtained, derived or manufactured in whole or in part therefrom: [T]hermoplastic: [O]ther."

In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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