CLA-2 CO:R:C:F 956157 EAB
District Director
U.S. Customs Service
423 Canal Street
New Orleans, Louisiana 70130-2341
Re: Application for Further Review of Protest No. 2002-93-101615,
dated October 13, 1993, concerning elastomeric ethylene propylene
copolymer beads
Dear Sir:
This is a decision on a protest filed October 13, 1993 against
your decision in the classification under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), of merchandise
liquidated on July 16, 1993 and entered on April 1, 1993.
FACTS:
The protestant entered all goods in subheading 3901.90.1000,
(HTSUSA), a provision for polymers of ethylene, in primary forms;
other; elastomeric, to be entered free of duty.
Customs reclassified the merchandise under subheading
3901.10.0020, HTSUSA, a provision for primary forms of low density
polyethylene, except linear low density polyethylene; the rate of
duty was advanced to the column one general rate of 12.5 percent ad
valorem.
A report of Customs laboratory analysis describes and
identifies the merchandise as translucent pellets of ethylene-propylene copolymer, a representative pellet consisting of 73
percent by weight of the ethylene comonomer and satisfying the
stretch and return test set forth in Additional U.S. Note 1 to
Chapter 39, HTSUSA.
ISSUE:
Whether elastomeric ethylene propylene copolymer beads are
classified as the polyethylene polymer of ethylene or as an other
polymer of ethylene.
LAW AND ANALYSIS:
Merchandise imported into the U.S. is classified under the
HTSUSA. 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 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.
Legal Note 4, Chapter 39, HTSUSA, provides in part that
copolymers and polymer blends are to be classified in the heading
covering polymers of that comonomer which predominates by weight
over every other single comonomer, the expression "copolymers"
meaning a polymer in which no single monomer contributes 95 percent
or more by weight to the total polymer content.
Polyethylene is but one polymer of ethylene and is
classifiable under subheading 3901.10, HTSUSA. Other polymers of
ethylene are classifiable under subheadings of heading 3901 other
than subheading 3901.10. In this case, we find that the subject
merchandise is a copolymer of propylene and ethylene, not propylene
and polyethylene, that is classifiable as a polymer of ethylene
pursuant to Legal Note 4, Chapter 39.
HOLDING:
Elastomeric ethylene propylene copolymer beads are
classifiable under subheading 3901.90.1000, HTSUSA, a provision for
"Polymers of ethylene, in primary forms: Other; Elastomeric."
Merchandise classifiable under the foregoing provision in 1993
was entitled to be entered free of duty.
Since reclassification of the merchandise as indicated above
will result in a lower rate of duty than claimed, you are
instructed to allow the protest in full.
A copy of this decision should be attached to the customs Form
19 and provided to the protestant as part of the notice of action
on the protest.
In accordance with Section 3A(11)(b) of Customs Directive 099
3550-065, dated August 4, 1992, Subject: Revised Protest Directive,
this decision should be mailed by your office to the protestant no
later than 60 days from the date of this letter. Any reliquidation
of the entry in accordance with the decision must be accomplished
prior to mailing of the decision. Sixty days from the date of the
decision the Office of Regulations and Rulings will take steps to
make the decision available to customs personnel via the Customs
Rulings Module in ACS and the public via the Diskette Subscription
Service, Freedom of Information and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division