CLA-2 RR:CR:GC 962505 MGM
Port Director
U.S. Customs Service
P.O. Box 1490
St. Albans, VT 05478
Re: Protest 0201-98-100043; “Papermatch DF 402B Natural”
Dear Port Director:
This is our decision regarding Protest 0201-98-100043, concerning your classification of “Papermatch DF 402B Natural” under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
Customs Laboratory Report 3-98-10036-001, dated January 6, 1998, states that the merchandise “an off-white granular material, is a concentrated dispersion of inorganic pigment (calcium carbonate) in plastics material (polyethylene).” This is consistent with the protestant’s description of the merchandise as “approximately 52% calcium carbonate with a small amount of additives in a polyethylene matrix.” The product is ultimately used to increase the stiffness and surface roughness of certain plastic films.
The merchandise was entered September 14, 1997, under subheading 2836.50.00, HTSUS, which provides for calcium carbonate. The entry was liquidated July 31, 1998, with classification under subheading 3206.49.10, HTSUS, the residual provision for coloring matter consisting of concentrated dispersions of pigments in plastics materials. This classification was timely protested on October 22, 1998. In a submission which accompanied the protest, the protestant abandoned the entered classification in subheading 2836.50.00, HTSUS, and argued for classification in subheadings 3824.90.90, 3206.49.50, HTSUS, or, in the alternative, “elsewhere in the HTS.”
ISSUE:
What is the correct classification of “Papermatch DF 402B Natural”?
LAW AND ANALYSIS:
Merchandise imported into the U.S. is classified under the HTSUS. 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 requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law.
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 GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The merchandise was entered under subheading 2836.50.00, HTSUS. Chapter 28 is limited to separate elements and separately defined chemical compounds. Note 1 (a), Chapter 28, HTSUS. As this merchandise is one compound dispersed in a polymer, with other minor additives, it is more than a separately defined compound and is excluded from Chapter 28.
The “Papermatch DF 402B Natural” mixture entry was liquidated under heading 3206, HTSUS, which provides for coloring preparations not encompassed by headings 3203 - 3205, HTSUS. Calcium carbonate is used as a filler and extender in plastics, not as a coloring agent.
Hawley’s Condensed Chemical Dictionary, 13th ed. Further, the Explanatory Note to heading 3206, HTSUS, states that “[t]he heading also excludes: [p]roducts of a kind used as extenders in oil paints...for example: (b) [c]alcium carbonate.” Because calcium carbonate dispersed in polyethylene is not a coloring preparation, and because preparations based on calcium carbonate are specifically excluded by the Explanatory Notes, “Papermatch DF 402B Natural” does not fall within heading 3206, HTSUS.
Heading 3901, HTSUS, provides for “Polymers of ethylene, in primary forms.” The term “primary forms” includes powder, granules and flakes which incorporate fillers. General ENs to Chapter 39, at 597. Here, the merchandise is granules of polyethylene with calcium carbonate filler. Thus, it is properly described as a polymer of ethylene in primary form.
HOLDING:
“Papermatch DF 402B Natural” is classified in subheading 3901.20.00, HTSUS. Since the rate of duty under the classification indicated above is more than the liquidated rate, you should deny the protest in full.
In accordance with Section 3A(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, 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 on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division