OT:RR:CTF:CPMM H286021 RGR
Mr. Paul C. Conway
BDP International Inc.
147-31 176th Street
Jamaica, NY 11434
RE: Revocation of NY N034669; Tariff classification of Poly Bd R-20LM butadiene rubber from Japan
Dear Mr. Conway:
This is to inform you that U.S. Customs and Border Protection (“CBP”) has reconsidered New York (“NY”) Ruling Letter N034669, dated August 29, 2008, issued to you on behalf of Sartomer Company, regarding the classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of Poly Bd R-20LM butadiene rubber from Japan. After reviewing this ruling in its entirety, we believe that it is in error. For the reasons set forth below, we hereby revoke NY N034669.
Pursuant to 19 U.S.C. § 1625(c)(1), a notice was published in the Customs Bulletin, Volume 52, No. 28 on July 11, 2018, proposing to modify NY N034669, and any treatment accorded to substantially similar transactions. No comments were received in response to this notice.
FACTS:
In NY N034669, we described the product as follows:
[Sartomer Company, Inc.] submitted a Test Report on Poly Bd dumbbell samples and a Report on the Formulation and Sulfur Curing of those samples. . .
Based on ARDL Test Report PN 79334 dated June 4, 2008, dumbbell samples of Poly Bd R-20LM butadiene rubber were tested and met the requirements for synthetic rubber in Note 4(a) [of chapter 40].
In a submission dated March 7, 2017, counsel for Total Petrochemicals & Refining USA, Inc. (“TPRI”) provided additional information about the Poly Bd R-20LM (“Poly Bd”) in NY N034669. That ruling was obtained on behalf of Cray Valley USA, LLC (“Cray Valley”), which had previously been operating as Sartomer Company, Inc. In 2014, TPRI acquired Cray Valley and the Poly Bd at issue in NY N034669. Thus, TPRI is now the entity that imports the Poly Bd for sale in the United States.
NY N034669 classified Poly Bd in heading 4002, HTSUS, based on test results by an independent third-party laboratory. However, at the time of issuance of NY N034669, a CBP Laboratories and Scientific Services (“LSSD”) report, dated February 12, 2008, was issued on the same merchandise from the same importer. That report stated that the sample of dumbbell-shaped test specimens submitted by Sartomer Company, Inc. from an entry dated April 15, 2007, did not meet the requirements of note 4(a) to chapter 40 for synthetic rubber.
In 2011, Cray Valley protested the reclassification and rate advance of its Poly Bd from subheading 4002.20.00, HTSUS, to subheading 3902.90.00, HTSUS. This protest was denied based on the conclusions of an LSSD report, dated June 2, 2011, finding that the dumbbell-shaped specimens did not meet the requirements of note 4(a) to chapter 40 for synthetic rubber.
ISSUE:
Whether the Poly Bd is classified under heading 3902, HTSUS, as a polymer of propylene or of other olefins, or under heading 4002, HTSUS, as synthetic rubber.
LAW AND ANALYSIS:
Classification under the HTSUS is governed by the General Rules of Interpretation (“GRI”). GRI 1 provides, in part, that “for legal purposes, classification shall be determined according to 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 and legal notes do not otherwise require, the remaining GRIs may then be applied in order.
The HTSUS provisions under consideration are as follows:
3902: Polymers of propylene or of other olefins, in primary forms
* * *
4002: Synthetic rubber and factice derived from oils, in primary form or in plates, sheets or strip; mixtures of any product of heading 4002 with any product of this heading, in primary form or in plates, sheets or strip
* * *
Note 2(l) to chapter 39, HTSUS, states, in pertinent part:
2. This chapter does not cover:
***
(l) Synthetic rubber, as defined for the purposes of chapter 40, or articles
thereof. . .
Note 4(a) to chapter 40, HTSUS, states, in pertinent part:
4. 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 18º and 29º 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 cross-linking, such as extenders, plasticizers and fillers, is not permitted.
* * *
In order for the subject merchandise to be considered a synthetic rubber of heading 4002, HTSUS, it must meet the “stretch and return” test of note 4(a) to chapter 40. TPRI explains that it has reviewed and confirmed its methodology that was used to perform the sulfur curing of the Poly Bd, explaining that Poly Bd is not known to be irreversibly transformed through sulfur vulcanization in order to pass the “stretch and return” test in note 4(a) to chapter 40, HTSUS. Accordingly, TPRI now asserts that given its own acknowledgement that the Poly Bd “is not consistently known to be irreversibly transformed through sulfur vulcanization in order to pass the ‘stretch and return’ test,” the Poly Bd should be classified in subheading 3902.90.00, HTSUS, as “polymers of propylene or of other olefins, in primary forms: other: other.” Thus, TPRI requests revocation of NY N034669, asserting that Poly Bd was incorrectly classified in subheading 4002.20.00, HTSUS.
We agree with TPRI’s assertion that the subject Poly Bd was incorrectly classified in heading 4002, HTSUS. Classification in heading 4002, HTSUS, in NY N034669 was based on an independent test report of dumbbell shaped samples of Poly Bd, concluding that the samples met the requirements of note 4(a) to chapter 40. However, according to two separate LSSD reports on the same merchandise by the same importer, one dated February 12, 2008 (the same year that NY N034669 was issued) and one dated June 2, 2011, dumbbell-shaped samples of Poly Bd did not satisfy the stretch and return test requirements of note 4(a) to chapter 40. Therefore, it cannot be classified in heading 4002, HTSUS. As the LSSD reports contradict NY N034669 on the correct classification of merchandise imported by the same importer, we find that the Poly Bd in NY N034669 was improperly classified in heading 4002, HTSUS.
Based on the Technical Data Sheet provided by TPRI, the subject merchandise is an hydroxyl terminated polybutadiene resin. As noted above, the merchandise is excluded from classification in heading 4002, HTSUS, because it did not satisfy the requirements of note 4(a) to chapter 40. In NY D85949, dated January 4, 1999, and NY M86153, dated September 15, 2006, we classified polymers of butadiene with terminal hydroxyl groups (hydroxyl terminated butadiene) in subheading 3902.90.00, HTSUS, as “Polymers of propylene or of other olefins, in primary forms: Other.” Where the subject Poly Bd is a polymer of butadiene with terminal hydroxyl groups as in NY D85949 and M86153, and where it failed to meet the requirements of the “stretch and return” test of note 4(a) to chapter 40, we find that the Poly Bd is properly classified in heading 3902, HTSUS.
HOLDING:
Pursuant to GRIs 1 and 6, Poly Bd R-20LM is classified in heading 3902, HTSUS, specifically in subheading 3902.90.0050, HTSUS (Annotated), which provides for “Polymers of propylene or of other olefins, in primary forms: Other: Other.” The 2018 column one, general rate of duty is 6.5% ad valorem.
EFFECT ON OTHER RULINGS:
NY N034669, dated August 29, 2008, is 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 and Trade Facilitation Division
Cc: Lindsey B. Meyer
Venable LLP
600 Massachusetts Avenue NW
Washington, DC 20001