CLA-2 RR:CR:MG 966558 MG
Maria Celis
Neville Peterson LLP
80 Broad Street – 34th Floor
New York, NY 10004
RE: Revocation of NY 818016; Liquid 1,2-Polybutadiene Rubber (NISSO PB-B1000)
Dear Ms. Celis:
This letter is in reply to your letter of June 13, 2003, on behalf of Nisso America, Inc., in which you request that we reconsider NY 818016, dated March 19, 1996. We have reviewed the classification in NY 818016 and have determined that it is incorrect. This ruling sets forth the correct classification.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625 (c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub.L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NY 818016 was published on February 4, 2004, in the Customs Bulletin, Volume 38, Number 6. No comments were received in response to that notice.
FACTS:
In NY 818016, Customs classified Liquid 1,2-Polybutadiene Rubber (NISSO PB-B1000), under subheading 3902.90.00, HTSUS and concluded that the product “did not meet the criteria for ‘synthetic rubber’ as set forth in Note 4(a) to Chapter 40, HTSUSA."
NISSO PB-B1000 is a good which is made from 100% 1,2 liquid polybutadiene polymer. It is used in the manufacture of tires and treads for automobiles, industrial products such as conveyor belts, hoses, seals, and gaskets, and other applications. Butadiene rubber is the second largest-volume synthetic rubber accounting for 23% of synthetic rubber consumption. You submit that polybutadiene rubber is known in commerce as synthetic rubber.
ISSUE:
What is the classification under the HTSUS of the NISSO PB-B1000?
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI) of the Harmonized Tariff Schedule of the United States (HTUS) govern the proper classification of merchandise. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. For an article to be classified in a particular heading, such heading must describe the article, and not be excluded therefrom by any legal note. Hence, if the merchandise is not classifiable in accordance with GRI 1 and if the headings and legal notes do not otherwise require, the merchandise may be classified in accordance with subsequent GRI.
The Explanatory Notes (ENs) are the official interpretation of the scope of the Harmonized Commodity Description and Coding System, which served as the basis for the HTSUS. The Court of International Trade has held that while the Explanatory Notes “do not constitute controlling legislative history, they nonetheless are intended to clarify the scope of the HTSUS…” See Structural Industries, Inc. v. United States, Slip Op. 02-141, p.5 n. 1 (Dec. 4, 2002), citing Jewelpack Corp. v. United States, 97 F. Supp. 2d 1192, 1196 n.6 (CIT 2000). Moreover, the Explanatory Notes are especially persuasive “when they specifically include or exclude an item from a tariff heading.” See H.I.M./Fathom, Inc. v. United States, 981 F. Supp. 610, 613 (1997).
The HTSUS headings 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 form 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:
4002.20.00 Butadiene rubber (BR).
Note 2(h) to Chapter 39, HTSUS, provides:
This chapter does not cover:
Synthetic rubber, as defined for purposes of chapter 40, or articles thereof.
Note 4 to Chapter 40, HTSUS, provides in pertinent part:
In note 1 to this chapter, and in heading 4002, the expression “synthetic rubber” applies to:
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- ½ 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 cross-linking, such as extenders, plasticizers and fillers, is not permitted.
In your letter of June 13, 2003, you submit that PB-B1000 is a synthetic rubber material which satisfies the requirements for classification as a synthetic rubber, as set out in Note 4(a) to Chapter 40, HTSUS. You claim therefore, that it is classified under subheading 4002.20.00, HTSUS, as a synthetic rubber.
You claim that the imported merchandise is classified under heading 4002, HTSUS, as a synthetic rubber in primary form. According to Note 3 of Chapter 40, the expression “primary forms” applies only to the following forms:
(a) Liquids and pastes (including latex, whether or not pre-vulcanized, and other dispersions and solutions);
(b) Blocks of irregular shape, lumps, bales, powders, granules, crumbs and similar bulk forms.
The PB-B1000 is in liquid form and thus is in primary form pursuant to Note 3 of Chapter 40.
You further submit that PB-B1000 is precluded from classification under heading 3902, HTSUS, as a primary form of propylene because (1) it satisfies the requirements of a synthetic rubber of heading 4002, and (2) it is more than a simple olefin of heading 3902. Note 2(h) to Chapter 39 states that Chapter 39 does not cover synthetic rubber as defined for purposes of Chapter 40.
You further aver that olefins classified under Heading 3902 do not have the elastic properties of the olefins, like butadiene rubber, under Chapter 40. You state that butadiene rubber is an olefin, but because it meets the elasticity tests of Note 4(a) to Chapter 40, it may not be classified as an olefin in primary form.
In support of your contention that the subject good has the elastic properties of a Chapter 40 synthetic rubber, and as such may not be classified as an olefin in primary form, you submitted two laboratory test results, one by Dainippon Jushi Kenkyusho, Co., Ltd. of Japan (DJK) and the other by Specialized Technology Resources (STR). The STR test uses the ASTM D 412-98a tests to measure elongation. In this regard, according to the standard’s formula, as long as the percentage of elongation at break is above 200%, then the specimen has stretched to three times its original length without breaking.
Customs Laboratory in New York reviewed the ASTM D 412-98a test measurements taken by STR and analyzed the dumbbell samples with a recipe prepared by Nippon Soda Company of Tokyo, Japan. The subject merchandise was tested for compliance with Note 4(a) of Chapter 40, using the ASTM D 412-98a elongation test. Customs Laboratory Report NY-2003-1253, dated July 31, 2003, determined that a sample of the subject goods meets the definition of Note 4(a) to Chapter 40, HTSUS.
Therefore, pursuant to Note 2(h) to Chapter 39, HTSUS, the subject good is not included in Chapter 39. Accordingly, we find it is classified in subheading 4002.20.00, HTSUS, as: “Synthetic rubber and factice derived from oils, in primary form 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: Butadiene rubber (BR).”
HOLDING:
The NISSO PB-B1000 is classified in subheading 4002.20.00, HTSUS, as: “Synthetic rubber and factice derived from oils, in primary form 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: Butadiene rubber (BR).”
EFFECT ON OTHER RULINGS:
NY 818016, dated March 19, 1996, is hereby REVOKED. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division