CLA-2 OT:RR:CTF:TCM H026518 HkP
Port Director
Port of St. Louis
U.S. Customs and Border Protection
4477 Woodson Road St. Louis, MO 63134
RE: Internal Advice; Classification of Nordenia “Grolastic” Film
Dear Port Director:
This is in response to your memorandum dated April 17, 2008, forwarding a request for internal advice (dated April 7, 2008) that was initiated on behalf of Nordenia USA (Nordenia). At issue is the classification of Grolastic film by U.S. Customs and Border Protection (CBP) under the Harmonized Tariff Schedule of the United States (HTSUS). In reaching our decision, we have taken into consideration additional information submitted by counsel for Nordenia to this office on July 23, 2008, and on October 22, 2009, and to the National Commodity Specialist Division on September 14, 2009.
FACTS:
We note that the merchandise was identified by Nordenia in its original request for internal advice as “Solastic” film but counsel for Nordenia indicates in later submissions that the merchandise should be correctly identified as “Grolastic” film.
Grolastic film is described as a lavender-colored, synthetic material consisting of a core layer of a styrene-butadiene copolymer sandwiched between outer layers composed of a polypropylene/polyethylene (plastics) copolymer. Between the core layer and the outer layers is a small amount of an anti-block additive to prevent the layers of materials from sticking together. Grolastic film is imported in rolls and is used in the manufacture of disposable baby diapers (it is stated to provide elasticity to the diapers).
In 2007, your port sent a sample of the merchandise under consideration to a CBP laboratory for analysis. The CBP laboratory report indicates that the merchandise consists of a styrene-butadiene copolymer that is an insoluble organic solvent, which is not vulcanized. Nordenia confirmed that the material was not vulcanized. Based on this CBP laboratory report, your port believes that the correct classification for the merchandise is in heading 3920.
In October 2009, various samples of the product were tested by another CBP laboratory, which found that the products met the requirements of the stretch-and-recovery test set forth in note 4 (a) to chapter 40.
In the April 7, 2008, letter requesting internal advice, counsel for Nordenia contends that Grolastic film is properly classified in heading 4002 (and specifically in subheading 4002.19.00). Later, in a letter dated October 22, 2009, upon further consideration, counsel for Nordenia indicates that it now believes that the proper classification of the merchandise is in heading 4005 (and specifically in subheading 4005.91.00).
ISSUE:
Whether the Grolastic film that is the subject of this internal advice request is classified in heading 3920, HTSUS, as a polymer of styrene (plastic); in heading 4002, HTSUS, as synthetic rubber; in heading 4005, HTSUS, as unvulcanized rubber; or in heading 4008, HTSUS, as vulcanized rubber.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule 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 2 through 6 may then be applied in order.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
Due to the hierarchical structure of the HTSUS:
(1) merchandise must first be classified in the HTSUS in the 4-digit heading whose terms most specifically describe the merchandise (unless otherwise required or directed by the GRIs); and
(2) only 4-digit headings are comparable (i.e., no consideration should be given to the terms of any subheading within any 4-digit heading when considering the proper classification of merchandise at the 4-digit heading level).
The HTSUS provisions at issue are:
3920 Other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials:
4002 Synthetic rubber and factice derived from oils, in primary forms or in plates, sheets or strip; mixtures of any product of heading 4001 with any product of this heading, in primary forms or in plates, sheets or strip:
4005 Compounded rubber, unvulcanized, in primary forms or in plates, sheets or strip:
4008 Plates, sheets, strips, rods and profile shapes, of vulcanized rubber other than hard rubber:
Certain legal notes are relevant to the classification of this merchandise:
Legal Note 2 to Chapter 39, HTSUS, provides, in pertinent part, as follows:
This chapter does not cover:
o o o o
(l) Synthetic rubber, as defined for the purposes of chapter 40, or articles
thereof[.]
Legal Notes 1, 4 and 5 to Chapter 40, HTSUS, provide, in relevant part, as follows:
1. Except where the context otherwise requires, throughout the tariff schedule the expression "rubber" means the following products, whether or not vulcanized or hard: natural rubber, balata, gutta-percha, guayule, chicle and similar natural gums, synthetic rubber, factice derived from oils and such substances reclaimed.
o o o o
4. In note 1 to this chapter and in heading 4002, the expression "synthetic rubber" applies to:
(a) Unsaturated synthetic substances which can be irreversibly transformed by vulcanization with sulfur into non-thermoplastic substances which, at a temperature between 18EC and 29EC, 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;
5. (a) Headings 4001 and 4002 do not apply to any rubber or mixture of rubbers which has been compounded, before or after coagulation, with:
o o o o
(ii) Pigments or other coloring matter other than those added solely for the purpose of identification[.]
Upon initial review, we have determined that heading 4008 is not a competing heading in the instant classification analysis because that heading provides for vulcanized rubber and the Grolastic film is not vulcanized.
With respect to heading 4002, note 5(a)(ii) to chapter 40 states that products of heading 4002 cannot contain “pigments or other coloring matter other than those added solely for the purpose of identification.” As indicated above, the Grolastic film contains a lavender-colored pigment. In an October 22, 2009, submission, counsel for Nordenia states the following: “Because the Grolastic film on these entries was pigmented, Chapter 40, Legal Note 5(a)(ii) excludes it from classification in heading 4002.” Based on this representative, we conclude that the Grolastic film is excluded from classification in heading 4002 by application of note 5(a)(ii) insofar as the lavender-colored pigment has apparently not been “added solely for the purpose of identification.”
With respect to the other two competing headings referenced above (i.e., 3920 and 4005), note 1 to chapter 40 states that, except where the context otherwise requires, the expression “rubber” means synthetic rubber, whether or not vulcanized. Note 4 (a) to chapter 40 sets out the test (a stretch-and-recovery test with specified temperature and time requirements) that an unsaturated synthetic substance must pass in order to be considered synthetic rubber under note 1 to chapter 40. Unsaturated synthetic substances include styrene-butadiene copolymers, such as the Grolastic film. See EN 40.02, which addresses Note 4 to chapter 40. According to the above-referenced 2009 CBP Laboratory report, the Grolastic film passed the above-referenced stretch-and-recovery test. Therefore, it meets the definition of a synthetic rubber. Note 2(l) to chapter 39 excludes synthetic rubber from classification in chapter 39 (and thus in heading 3920). Consequently, the Grolastic film under consideration cannot be classified as a plastic of chapter 39. Rather, based on the foregoing facts and by application of GIR 1, we find that the Grolastic film is classified in heading 4005, HTSUS, as an unvulcanized synthetic rubber compound. See also EN 4005 (Heading 4005 covers compounded, unvulcanized synthetic rubber.).
HOLDING:
As indicated above, by application of GRI 1, the Grolastic film is classified in heading 4005, HTSUS. It is specifically provided for in subheading 4005.91.00, which provides for: “Compounded rubber, unvulcanized, in primary forms or in plates, sheets or strip: Other: Plates, sheets, and strip.” The 2010 column one, general rate of duty is free.
You are to mail this decision to the internal advice requester no later than 60 days from the date of the decision. At that time, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division