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HQ 962894





December 28, 2000

CLA-2 RR:CR:GC 962894 nel

CATEGORY: CLASSIFICATION

TARIFF NO.: 3909.40.0000

Port Director
U.S. Customs Service
555 Battery Street
San Francisco, CA 94111

RE: Protest 2809-99-100037: Primaset PT-15 and Primaset PT-60 cyanate resins, CAS #87397-54-4

Dear Port Director:

This is our decision on Protest 2809-99-100037, timely filed, on behalf of Lonza, Inc., on January 19, 1999, against your classification decision regarding the chemical compound Primaset under the Harmonized Tariff Schedule of the United States (HTSUS). The entry dated July 14, 1998, was liquidated on November 20, 1998.

FACTS:

The chemical structure and CAS reference #87397-54-4, provided by the importer, describe a phenol-formaldehyde molecule which has been modified by the addition of a cyanate group. A sample of Primaset from the entry in question was not submitted. The importer claimed classification in subheading 3911.90.3500, HTSUS, which provides for: Petroleum resins, coumarone-indene resins, polyterpenes, polysulfides, polysulfones and other products specified in note 3 to chapter 39, not elsewhere specified or included, in primary forms: Other: Other: Containing monomer units which are aromatic or modified aromatic, or which are obtained, derived or manufactured in whole or in part therefrom: Thermosetting: Hydrocarbon novolac cyanate ester.

Customs laboratory report #2-1994-31021, dated September 23, 1994, analyzing Primaset PT-30, indicates a chemically modified phenolic resin. The chemical structure shows a monomer repeating unit consisting of one phenol unit. Customs classified the merchandise in subheading 3909.40.0000, HTSUS, which provides for Amino-resins, phenolic resins and polyurethanes, in primary forms: Phenolic resins.

ISSUE:

What is the tariff classification of Primaset PT-15 and Primaset PT-60 cyanate resins, CAS #87397-54-4.

LAW & ANALYSIS:

The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTSUS. The majority of imported goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule 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 and legal notes do not otherwise require, then the remaining GRIs may be applied. The Explanatory Notes to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs.

Phenolic resins are the reaction products of phenol (C₆HOH) with formaldehyde (HCHO) in the presence of a catalyst. If the reaction product, the polymer molecule, terminates in a phenol group, the resin is referred to as a novolac resin. Novolac resins contain only methylene links, are phenol terminated, contain an average of five or six phenol units per molecule and have no free methylene groups.

Although samples of the goods in question were not submitted for testing, the Primaset compounds in issue, similar to Primaset PT-30, analyzed in Customs laboratory report #2-1994-31021, are chemically modified phenolic resins, terminating in a free methylene (formaldehyde) group and containing one phenol monomer repeating unit per molecule. The findings of the Customs Laboratory are presumed valid. Customs laboratory reports are official documents and cannot be disregarded for any reason. See Customs Directive 3820-002A, dated May 5, 1999. Therefore, we must assume that the Primaset PT-15 and Primaset PT-60 are not novolac resins.

Heading 3911, HTSUS, covers other synthetic thermosetting polymers which are aromatic or modified aromatic and which are not elsewhere specified or included; subheading 3911.90.3500, HTSUS, covers hydrocarbon novolac cyanate esters. Although the Primaset PT-15 and Primaset PT-60 are modified phenolic aromatics, they are not novolac resins. Therefore, they are not described by subheading 3911.90.3500, HTSUS, but are described by subheading 3909.40.000, HTSUS, which provides, eo nomine, for phenolic resins and modified phenolic resins.

HOLDING:

Primaset PT-15 and Primaset PT-60 are properly classified in subheading 3909.40.0000, HTSUS, which provides for Amino-resins, phenolic resins and polyurethanes, in primary forms: Phenolic resins.

Protest 2809-99-100037 should be DENIED.

In accordance with Section 3(A)(11)(b) of Customs Directive 099-3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, Notice of Action, 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 of the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,


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