CLA-2 OT:RR:CTF:TCM H044564 ARM
Port Director
Port of Chicago
U.S. Customs and Border Protection
9915 Bryn Mawr
Rosemont, IL 60018
RE: Application for Further Review of Protest 3901-08-101355; Duty Suspension of Polyisobutylene
Dear Port Director:
The following is our decision regarding Application for Further Review of Protest No. 3901-08-101355, timely filed on September 24, 2008, on behalf of Rit-Chem Corp, Inc., regarding the classification of polyisobutylene under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The instant merchandise consists of Polyisobutylene, CAS number 9003-27-4, which has a chemical formula of (C4H8)x, and the chemical name 1-Propene,
2-methyl-, homopolymer .
The protest describes thirty two entries from May 19, 2007 through January 3, 2008, liquidated from March 27, 2008 through November 13, 2008 in subheading 3902.20.50, HTSUS, which provides for other polyisobutylene at 6.5% ad valorem.
ISSUE:
Whether the merchandise classifiable in subheading 3902.20, HTSUS, as polyisobutylene, is eligible for duty–free treatment under subheading 9902.24.37, HTSUS.
LAW AND ANALYSIS:
We note that the matter is protested under 19 U.S.C. §1514(a)(2) as a decision on classification and duty determination. The protest was timely filed within 180 days of liquidation of entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 3901-08-101355 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the protest involves facts and law not previously addressed by CBP or the courts.
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. The GRIs 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.
The 2008 HTSUS provisions under consideration are as follows:
3902 Polymers of propylene or of other olefins, in primary forms:
* * * * *
3902.20 Polyisobutylene:
* * *
3902.20.50 Other . . . . . . . . . . . . . . . . . . . 6.5%
3902.30.00 Propylene copolymers . . . . . . . . . . . . . . 6.5% 2/
* * * * *
2/ See heading 9902.24.37.
* * * * *
9902.24.37 1-Propene-2-methyl homopolymer (CAS No. 9003-27-4)(provided for in subheading 3902.30.00), Free, No change, No change, On or before 12/31/2009
On May 5, 2005, H.R. 2114 was introduced to congress. It stated:
A BILL
To suspend temporarily the duty on 1-propene-2-methyl homopolymer.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. 1-PROPENE-2-METHYL HOMOPOLYMER.
(a) In General- Subchapter II of chapter 99 of the Harmonized Tariff Schedule of the United States is amended by inserting in numerical sequence the following new heading:
9902.06.06
1-propene-2-methyl homopolymer (CAS No. 9003-27-4) (provided for in subheading 3902.30.00)
Free
No change
No change
On or before 12/31/2008
(b) Effective Date- The amendment made by subsection (a) applies to goods entered, or withdrawn from warehouse for consumption, on or after the 15th day after the date of enactment of this Act.
Miscellaneous Tariff Bills are submitted to several Executive Branch agencies for review and comment. The United Stated International Trade Commission (USITC) produces a memorandum on each bill submitted to it. The Memorandum on Proposed Tariff Legislation of the 109th Congress, dated November 7, 2005, on H.R. 2114 states in the Technical Comments section, the following:
The Commission notes that the article description with the corresponding CAS number refers to polyisobutylene which is a homopolymer classifiable under 3902.20.50, according to the U.S. Customs Service. The commission suggests that the proponent work with Customs to obtain a product description that would be administrable by Customs.
The language of the provision appears in the 2006 HTSUS unchanged except for being renumbered to subheading 9902.34.27. On February 13, 2008, H.R. 5423 reintroduced the text of 9902.34.27, but changed the duty rate assigned from free to 3% ad valorem and extended the effective period to 12/31/2011.
The USITC technical comments to their Memorandum on Proposed Tariff Legislation of the 110th Congress, dated July 29, 2008 states the following:
The Commission staff recommend that the article description on page 1 of this report be used in HTS heading 9902.24.37 to provide the correct HTS subheading reference, and to incorporate the chemical name that is used in superior HTS subheading 3902.20.
"The first step in interpreting a statute is to examine the text of the statute." United States v. Alvarez-Sanchez, 311 U.S. 350, 356 (1994). "Where the content of the statute is clear and unambiguous, that language must ordinarily be regarded as conclusive." Norfolk and Western Railway, Co. v. United States, 869 F. Supp. 974, 979(Ct. Int’l Trade 1994)(internal citation and quotation omitted). "When the text of a statute is ambiguous, the statute must be interpreted to conform to the goals and purposes Congress intended the statute to address." Id. at 979 (internal citation omitted).
In Marcor Dev. Corp. v. United States, 20 C.I.T. 538 (Ct. Int'l Trade 1996), The Court of International Trade stated:
It is well settled that ambiguity is a creature not of definitional possibilities but of statutory context. (citations omitted). When engaging in statutory construction, the court must look to the entire context of the relevant section of the statute and not merely to the individual word. (citations and quotes omitted). When a tariff term has various definitions or meanings and has broad and narrow interpretations, the court must determine which definition best invokes the legislative intent. (citations omitted).
Id. at 541-542.
Protestant argues that the reference to subheading 3902.30.00, HTSUS is a scrivener’s error (clerical or typographical error). As such, protestant proposes that the reference to subheading 3902.30.00, HTSUSU, be disregarded.
In Ford Motor Credit Co. v. Milhollin, 444 U.S. 555 (U.S. 1980), the Supreme Court has stated:
Legislative silence is not always the result of a lack of prescience; it may instead betoken permission or, perhaps, considered abstention from regulation. In that event, judges are not accredited to supersede Congress or the appropriate agency by embellishing upon the regulatory scheme.
Id. at 565.
The interpretation expressly placed on a statute by those charged with its administration must be given weight by courts faced with the task of construing the statute. Udall v. Tallman, 380 U.S. 1, 16-18; Norwegian Nitrogen Co. v. United States, 288 U.S. 294, 315. Under some circumstances, Congress' failure to repeal or revise in the face of such administrative interpretation has been held to constitute persuasive evidence that that interpretation is the one intended by Congress. NLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 275 (U.S. 1974).
There is no dispute that the instant merchandise, polyisobutylene, is classified in the eo nomine provision for it in subheading 3902.20.50, HTSUS. A homopolymer like polyisobutylene, a polymer consisting substantially of a single type of repeating unit, cannot be classified as a copolymer of subheading 3902.30.00, a polymer derived from two (or more) units.
Congress was apprised of the conflicting nature of the language in the bill and enacted it without change. Hence, we do not agree that the ambiguity is clearly the result of a scrivener’s error. Instead, we maintain that the provision does not describe the instant merchandise, polyisobutylene classified in subheading 3902.20.50, HTSUS.
HOLDING:
At GRI 1 and 6, the instant polyisobutylene is classified in subheading 3902.20.50, HTSUS, which provides for: “Polymers of propylene or of other olefins, in primary forms: Polyisobutylene: Other.” The column one, general duty rate for 2008 is 6.5% ad valorem. No duty suspension provision is listed for this merchandise.
You are instructed to deny the protest.
Duty rates are provided for the protestant’s convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, 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 this letter, the Office of International Trade will make this letter 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