CLA-2 OT:RR:CTF:TCM HQ H045781 TNA
Port Director, St. Louis Service Port
U.S. Customs and Border Protection
4477 Woodson Road St. Louis, MO 63134
Re: Protest and Application for Further Review No: 4503-08-100040; Liquid Adhesives
Dear Port Director:
The following is our decision regarding Protest and Application for Further Review No. 4503-08-100040, timely filed on October 6, 2008, on behalf of Nordenia USA, Inc. (“Nordenia”), regarding the tariff classification of liquid adhesives under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The subject merchandise consists of product number XPU 18373, a formulated adhesive in liquid form based on polyurethane polymers. It is a derivative of methylenedi-p-phenylene isocyanate (MDI). To form the subject merchandise, two molecules of MDI are bridged with a polypropylene glycol, forming a prepolymer with properties close to MDI with isocyanate functions.
A sample of the merchandise was sent to a Customs and Border Protection (“CBP”) laboratory for analysis. The resulting laboratory report, NY 20081930, dated January 23, 2009, indicated that XPU 18373 is a mixture of polyurethanes, MDI, and a small amount of other substances, possibly being aliphatic compounds such as paraffin wax.
This protest covers two entries of the subject merchandise on August 6, 2007 and August 29, 2007 in subheading 2929.10.80, HTSUS, as “Compounds with other nitrogen function: Isocyanates: Other: Other.” The entries were liquidated as entered on June 20, 2008 and July 7, 2008. Protestant now claims classification in subheading 3506.91.00, HTSUS, as “Prepared glues and other prepared adhesives, not elsewhere specified or included; products suitable for use as glues or adhesives, put up for retail sale as glues or adhesives, not exceeding a net weight of 1 kg: Other: Adhesives based on polymers of headings 3901 to 3913 or on rubber.”
ISSUE:
Whether an adhesive based on a polyurethane polymer mixture should be classified under heading 2929, HTSUS, as other isocyanates, or under heading 3506, HTSUS, as other adhesives based on polymers of headings 3901 to 3913, HTSUS?
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry. (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. 4503-08-100040 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because Protestant alleges that the decision against which the protest was filed is inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or similar merchandise. Specifically, Protestant argues that the liquidation of the subject merchandise is inconsistent with New York Ruling (“NY”) N003381, dated November 22, 2006, which classified another adhesive made by the same importer under subheading 3506.91, HTSUS, as an adhesive based on polymers of headings 3901 to 3913, HTSUS.
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 their appropriate order.
The HTSUS provisions under consideration are as follows:
2929 Compounds with other nitrogen function:
2929.10 Isocyanates:
Other:
2929.10.80 Other…
* * * * * * * * * * * *
3506 Prepared glues and other prepared adhesives, not elsewhere specified or included; products suitable for use as glues or adhesives, put up for retail sale as glues or adhesives, not exceeding a net weight of 1 kg:
Other:
3506.91.00 Adhesives based on polymers of headings 3901 to 3913 or on rubber…
Chapter 29 Note 1 reads, in pertinent part:
Except where the context otherwise requires, the headings of this Chapter apply only to:
Separate chemically defined organic compounds, whether or not containing impurities;
Mixtures of two or more isomers of the same organic compound (whether or not containing impurities), except mixtures of acyclic hydrocarbon isomers (other than stereoisomers), whether or not saturated (chapter 27);
The products of headings 2936 to 2939 or the sugar ethers, sugar acetals and sugar esters, and their salts, of heading 2940, or the products of heading 2941, whether or not chemically defined;
(d) Products mentioned in (a), (b) or (c) above dissolved in water
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 these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
Part A of the General Explanatory Notes to Chapter 29, defines, in relevant part, a “separate chemically defined compound” as:
[a] substance which consists of one molecular species (e.g., covalent or ionic) whose composition is defined by a constant ratio of elements and can be represented by a definitive structural diagram…
Separate chemically defined compounds containing other substances deliberately added during or after their manufacture (including purification) are excluded from this Chapter.
The EN for heading 2929, HTSUS, states, in pertinent part:
This heading includes :
(1) Isocyanates
This group of chemicals includes mono- and polyfunctional isocyanates. Isocyanates with di- or higher functionality, such as methylene diphenyl isocyanate (MDI), hexamethylene diisocyanate (HDI), toluene diisocyanate (TDI) and toluene diisocyanate dimer, are used extensively in the manufacture of polyurethanes.
This heading excludes poly(methylene phenyl isocyanate) (crude MDI or polymeric MDI)(heading 39.09).
The EN for heading 3506, HTSUS, states, in pertinent part:
This heading covers:…
(B) Prepared glues and other prepared adhesives, not covered by a more specific heading in the Nomenclature, for example:
(1) Gluten glues (“Vienna glues”) normally obtained from gluten rendered soluble by partial fermentation. These glues are usually in the form of flakes or powders and vary in colour from yellowish to brown.
(2) Glues or other adhesives obtained by chemically treating natural gums.
(3) Adhesives based on silicates, etc.
(4) 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 Chapter 39 (fillers, plasticisers, solvents, pigments, etc.), contain other added substances not falling in that Chapter (e.g., waxes).
(5) Adhesives consisting of a mixture of rubber, organic solvents, fillers, vulcanising agents and resins.
It is to be noted that certain of the products included in this heading are usable as glues or adhesives in the form in which they are sold, while others must be dissolved or dispersed in water before use.
Protestant argues that NY N003381 was issued to the same importer and classified merchandise that is similar to the subject merchandise. NY N003381 classified polyester hot melt adhesive in bulk form in subheading 3506.91.00, HTSUS, as an adhesive based on polymers of headings 2901 to 3913, HTSUS.
Laboratory analysis indicates that the subject merchandise is a mixture of polyurethanes of heading 3909, HTSUS, MDI of heading 3909, HTSUS, and a small amount of other alipathic compounds, such as paraffin wax, of heading 2712, HTSUS. The instant merchandise is a mixture, it cannot be a separately defined organic compound within the meaning of Legal Note 1(a) to Chapter 29, HTSUS. The instant mixture of polymers of Chapter 30, and alipathic compounds, is not a mixture of isomers of the same organic compound. See Note 1(b) to Chapter 29, HTSUS. Nor is the product a mixture of sugar, esters, etc., exempted from the rule by Legal Note 1(c) to Chapter 29, HTSUS. Separate chemically defined compounds that contain substances that are deliberately added during manufacturing are excluded from Chapter 29, HTSUS. See General EN to Chapter 29. The subject merchandise contains a mixture of polymers and other substances that were deliberately combined during the manufacturing process. As a result, it cannot be classified in Chapter 29, HTSUS.
Heading 3506, HTSUS, covers prepared adhesives, including preparations specially formulated for use as adhesives, that consist of polymers or blends of poloymers of headings 39.01 to 39.13 which, apart from any permitted additions to the products of Chapter 39 (fillers, plasticisers, solvents, pigments, etc.), also contain other added substances, such as waxes, that are not classified in Chapter 39. See EN 35.06. Laboratory analysis confirms that the subject merchandise fits these terms. As a result, the subject merchandise, much like the merchandise at issue in NY N003381, is classified in heading 3506, and specifically subheading 3506.910.00, as “Prepared glues and other prepared adhesives, not elsewhere specified or included; products suitable for use as glues or adhesives, put up for retail sale as glues or adhesives, not exceeding a net weight of 1 kg: Other: Adhesives based on polymers of headings 3901 to 3913.”
HOLDING:
By application of GRI 1, XPU 18373, a liquid adhesive, is classified in heading 3506, HTSUS, specifically subheading 3506.91.00, HTSUS, which provides for: “Prepared glues and other prepared adhesives, not elsewhere specified or included; products suitable for use as glues or adhesives, put up for retail sale as glues or adhesives, not exceeding a net weight of 1 kg: Other: Adhesives based on polymers of headings 3901 to 3913 or on rubber.” The 2007 general column one rate of duty is 2.1% ad valorem.
You are instructed to ALLOW the protest.
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 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 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