CLA-2 RR:CR:GC 965290AM
Mr. Michael K. Tomenga
Neville Peterson LLP
1900 M Street, N.W., Suite 850
Washington, D.C. 20036
RE: NYRL H84948; Technyl® containing wax
Dear Mr. Tomenga:
This concerns your letter, dated October 9, 2001, on behalf of Rhodia Engineering Plastics Corp., requesting reconsideration of New York Ruling Letter (NY) H84948, dated August 8, 2001, regarding the tariff classification, pursuant to the Harmonized Tariff Schedule of the United States (HTSUS), of three Technyl® products containing wax. We have also considered arguments you presented in a telephone conference with a member of my staff on April 24, 2002, and in a supplemental submission dated May 8, 2002.
FACTS:
The products, Technyl® A218V35 Black 21N, Technyl® A218V30 Black 34 NG and Technyl® A238V13 Black 21N, are polyamide 6,6 pellets combined, through a melting and extrusion process, with fiberglass, a crystallization agent and Barolub LT 107 (C.A.S. No. 28188-24-1). Barolub LT 107 is described by the manufacturer as polyesters of fatty acids consisting of a fatty ester, pentaerythitol tristearate (C.A.S. No. 8045-34-9). You refer to Barolub LT 107 as a "wax" added to the pellets as in "internal lubricant and mold release agent." Barolub LT 107 constitutes less than 1% of the total content of the pellets. The dropping point of Barolub LT 107 is 59.5ºC and the viscosity is 80 cPs (mPas) at 65ºC. Technyl® A238V13 Black 21N also contains a co-polymer, making this substance a polymer blend. The polyamide 6,6 constitutes approximately 84% of the total polymer content of the blend.
The merchandise is used in injection molding. The pellets are inserted into an injection molding machine and heated until the plastic pellets melt. The molten plastic is forced under very high hydraulic pressure into a mold and cooled until it solidifies into the shape of the mold cavity. The new plastic form is then released from the mold.
In NY H84948, two of the products, Technyl® A218V35 Black 21N and Technyl® A218V30 Black 34 NG were classified in subheading 3908.10.00, HTSUS, which provides for “Polyamides in primary forms: Polyamide-6, -11, -12, -6,6, -6,9, -6,10 or –6.” The third product, Technyl® A238V13 Black 21N was classified in subheading 3908.90.70, which provides for “Polyamides in primary forms: Other: Other.”
ISSUE:
What is the classification of the three Technyl® products?
LAW AND ANALYSIS:
Merchandise imported into the United States 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 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 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 HTSUS provisions under consideration are as follows:
3908: Polyamides in primary forms:
3908.10.00 Polyamide-6, -11, -12, -6,6, -6,9, -6,10 or -6,
Other:
3908.90.70 Other
* * * * *
3824 Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included; residual products of the chemical or allied industries, not elsewhere specified or included:
The General ENs to Chapter 39, HTSUS, state, in pertinent part, as follows:
Primary forms
Headings 39.01 to 39.14 cover goods in primary forms only. The expression “primary forms” is defined in Note 6 to this Chapter. It applies only to the following forms:
(1) Liquids and pastes. These may be the basic polymer which requires “curring” by heat or otherwise to form the finished material, or may be dispersions (emulsions and suspensions) or solutions of the uncured or partly cured materials. In addition to substances necessary for “curing” such as hardeners (cross-linking agents or other co-reactants and accelerators), these liquids or pastes may contain other materials such as plasticisers, stabilisers, fillers and colouring matter, chiefly intended to give the finished products special physical properties or other desirable characteristics. The liquids and pastes are used for casting, extrusion, etc., and also as impregnating materials, surface coatings, bases for varnishes and paints, or as glues, thickeners, flocculants, etc.
When as a result of the addition of certain substances, the resultant products answer to the description in a more specific heading elsewhere in the Nomenclature, they are excluded from Chapter 39; this is, for example, the case with:
(a) Prepared glues - see exclusion (b) at the end of this General Explanatory Note.
(b) Prepared additives for mineral oils (heading 38.11).
* * * * *
(2) Powder, granules and flakes. In these forms they are employed for moulding, for the manufacture of varnishes, glues, etc. and as thickeners, flocculants, etc. They may consist of the unplasticised materials which become plastic in the moulding and curing process, or of materials to which plasticisers have been added; these materials may incorporate fillers (e.g., wood flour, cellulose, textile fibres, mineral substances, starches), colouring matter or other substances cited in Item (1) above. Powders may be used, for example, to coat objects by the application of heat with or without static electricity. (pp. 717-18)
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In addition to the exclusions mentioned in Note 2, the Chapter excludes: . . .
(b) Preparations specially formulated for use as adhesives, consisting of polymers or blends thereof of headings 39.01 to 39.13 which, apart from any permitted additions to the products of this Chapter (fillers, plasticisers, solvents, pigments, etc.), contain other added substances not falling in this Chapter (e.g., waxes) and products of headings 39.01 to 39.13 put up for retail sale as glues or adhesives, not exceeding a net weight of 1 kg (heading 35.06). (p. 720).
Polyamides in primary forms are eo nomine provided for in heading 3908, HTSUS. The Technyl® products at issue all contain Polyamide 6,6 pellets (granules), a polyamide in primary form, combined with other substances. The ENs to Chapter 39 state that certain other substances may be added to goods in primary forms without excluding the resulting product from heading 3901 through 3914, HTSUS. However, you argue that exclusion (b) to the General EN to Chapter 39, HTSUS, p. 720, excludes all products of Chapter 39, HTSUS, that contain other added substances, such as waxes, not falling in Chapter 39. We believe this reading is incorrect.
As a primary matter, EN 34.04 states that a wax must have "a dropping point above 40ºC; and a viscosity, when measured by rotational viscometry, not exceeding 10 Pa.s (or 10,000 cP) at a temperature of 10ºC above their dropping point" (p. 634). Additionally, mixtures of mono-, di- and tri-, fatty acid esters of glycerol, not having the character of waxes are excluded from classification as waxes in favor of heading 3824, HTSUS (p. 635). Barolub LT 107 meets the technical criteria for a wax.
However, even if Barolub LT 107 is a wax, the language in the EN (p. 720) does not exclude the instant merchandise from Chapter 39. The subject of the entire sentence is “preparations specially formulated for use as adhesives.” If an adhesive preparation contains waxes, it is excluded from the chapter. The EN says nothing about a non-adhesive preparation containing wax. Furthermore, the EN is cross-referenced with General ENs, p. 718, wherein “glues” that contain certain additional substances are specifically excluded from Chapter 39, HTSUS, because "as a result of the addition of certain substances, the resultant products answer to the description in a more specific heading elsewhere in the Nomenclature. . . ." (emphasis added). Reading the ENs comprehensively, the specific exclusion for added waxes is made only for prepared adhesives because the addition of waxes and other substances not specified in Chapter 39 other than "fillers, plasticisers, solvents, pigments, etc." creates a product which is specifically provided for elsewhere in the nomenclature.
Yet, you request classification of the Technyl® products in heading 3824, HTSUS, the provision for "chemical products and preparations . . ., not elsewhere specified or included." This provision can not be considered more specific than heading 3908, HTSUS, an eo nomine provision. Therefore, the instant merchandise with an additive not falling in Chapter 39, HTSUS, is not analogous to an adhesive with such an additive, because there is no specific provision describing the resultant substance.
Moreover, less than 1% of the composition of the pellets is Barolub LT 107. The addition of such a small amount of another substance into a product otherwise classified in heading 3908, HTSUS, does not change the character of the substance such that the product is excluded from the heading.
Even though we have established that waxes are not specifically excluded from permissible added substances to goods of heading 3908, HTSUS, we must now determine that waxes are permitted added substances to polyamides in primary forms, specifically, pellets or granules. Permissible added substances are “unplasticised materials which become plastic in the moulding and curing process, . . . materials to which plasticisers have been added . . . fillers (e.g., wood flour, cellulose, textile fibres, mineral substances, starches), colouring matter or other substances cited in Item (1) above.” EN (2) p. 718. The substances cited in Item (1) above are: "substances necessary for 'curing' such as hardeners (cross-linking agents) or other co-reactants and accelerators), . . . other materials such as plasticisers, stabilisers, fillers and colouring matter, chiefly intended to give the finished products special physical properties or other desirable characteristics." EN (1) p. 717 (emphasis added). Additionally, the EN on p. 720 lists "fillers, plasticisers, solvents, pigments, etc." as permitted additions to products in chapter 39, HTSUS.
The fatty acid lubricant in the instant case is not a filler, plasticiser, solvent or pigment. You state, and our research confirms, that Barolub LT 107 functions as an internal lubricant that eases mold release of the formed plastic shape. Certainly, a "desirable characteristic" of polyamide 6,6 pellets used in injection molding is that the formed shape produced therefrom easily releases from the mold. Barolub LT 107 is therefore a permitted additional substance to the instant merchandise. In our experience, plastics often contain additives other than those listed in the ENs. In addition to lubricants and mold release agents, these include blowing agents, antifoaming agents, etc. By using the language "...chiefly intended to give the finished products special physical properties or other desirable characteristics" (emphasis added), the ENs did not intend to exclude substances mostly used as processing aids.
Lastly, your reference to HQ 960256, dated December 3, 1997, NY 865969, dated August 29, 1991, NY E88760, dated January 19, 2000, NY B83226, dated June 13, 1997, NY B88459, dated October 30, 1997 and HQ 952979, dated May 11, 1993, in your submission of August 3, 2001, are not persuasive to the instant determination. All of those cases describe products that are either a mixture of at least two substances other than plasticisers, fillers, solvents, pigments, etc. or an adhesive. The instant products contain a polymer plus other substances chiefly intended to give the finished products special physical properties or other desirable characteristics. Hence, Technyl® products with wax are eo nomine classified in heading 3908, HTSUS. They can not be classified in heading 3824, HTSUS, as the terms of that heading preclude classification of goods "elsewhere specified or included."
At GRI 6, Technyl® A218V35 Black 21N and Technyl® A218V30 Black 34 NG are classified in subheading 3908.10.00, HTSUS, which provides for “Polyamides in primary forms: Polyamide-6, -11, -12, -6,6, -6,9, -6,10 or –6.”
The third product, Technyl® A238V13 Black 21N is a polymer blend of Polyamide-6,6 and a co-polymer. The ENs state, in pertinent part, the following with regard to polymer blends:
Classification of polymer blends
The last paragraph of Subheading Note 1 directs the classification of polymer blends. These are to be classified in the same subheading as if they were polymers of the same monomer units in the same proportions.
The following examples illustrate the classification of polymer blends :
* * * * * *
A polymer blend consisting of 60 % polyamide-6 and 40 % polyamide-6,6 is to be classified in subheading 3908.90 ( “ Other ”) since the constituent monomer units of neither of the polymers contribute 95 % or more by weight of the total polymer content.
In the instant case, polyamide 6,6 comprises 84% and the copolymer comprises 12% of the total polymer content of the product. As in the example above, neither polymer in the blend comprises at least 95% by weight of the total polymer content of the product. Therefore, Technyl® A238V13 Black 21N is classified in subheading 3908.90.70, HTSUS, which provides for “Polyamides in primary forms: Other: Other.”
HOLDING:
Technyl® A218V35 Black 21N and Technyl® A218V30 Black 34 NG are classified in subheading 3908.10.00, HTSUS, which provides for “Polyamides in primary forms: Polyamide-6, -11, -12, -6,6, -6,9, -6,10 or –6.” Technyl® A238V13 Black 21N is therefore classified in subheading 3908.90.70, HTSUS, which provides for “Polyamides in primary forms: Other: Other.” NY H84948 is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division