CLA-2 CO:R:C:F 089564 EAB
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.
FACTS:
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.
ISSUE:
What is the proper classification under the HTSUSA of
ethylene-propylene copolymer in primary form?
LAW AND ANALYSIS:
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.
HOLDING:
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.
Sincerely,
John Durant, Director