CLA–2 OT:RR:CTF:TCM H080820 AMM
Mr. Alan Kalmikoff, President
Keim-Additec Surface, USA, LLC
1200 Central Ave., Suite 306
Wilmette, IL 60091
RE: Revocation of New York Ruling Letter N063739; Tariff Classification of Ultralube D-806
Dear Mr. Kalmikoff,
This is in reference to New York Ruling Letter (NY) N063739, dated June 17, 2009, regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of the product identified as “Ultralube D-806.” In that ruling, U.S. Customs and Border Protection (CBP) classified the Ultralube D-806 under heading 3901, HTSUS, which provides for “Polymers of ethylene, in primary forms”. We have reviewed NY N063739 and found it to be incorrect. For the reasons set forth below, we are revoking that ruling.
Pursuant to section 625(c), Tariff Act of 1930, (19 U.S.C. §1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed modification of treatment relating to the tariff classification of Ultralube D-806 was published on August 1, 2012, in the Customs Bulletin, Volume 46, Number 32. Comments from one interested party were received on this proposal. The commenter disagreed with the proposed classification of the instant Ultralube D-806. A discussion of the comments and CBP’s reasoning are found in the “Law and Analysis” section below.
FACTS:
In NY N063739, CBP described the instant merchandise as linear low density polyethylene, consisting of a mixture of “50% linear low density Polyethylene, 40% Water, 6% Oxidized Polyethylene, 4% Ethoxylated alcohols.” CBP further described it as “an aqueous wax additive in which linear low density polyethylene particles of an average particle size of about 8µm are dispersed in water. The product will be incorporated into aqueous coatings such as water based printing inks to improve the surface qualities of the coating, ink and lacquers.” CBP classified this product under heading 3901, HTSUS, which provides for “Polymers of ethylene, in primary forms”.
In your submission, dated July 10, 2009, you requested that CBP reconsider NY N063739. In this submission, you stated that “Ultralube D-806 is currently used as a polish, straight out of the container, by Chinese leather manufacturers who use the material for the Bianchini effect of toning (a whitening effect) the look of the leather and for soft feel properties.” You also included a Material Safety Data Sheet (MSDS) stating that the density of Ultralube D-806 is 0.96 g/cm3 at 22(C. According to your submission dated April 3, 2012, the viscosity of Ultralube D-806 is between 200 and 400 mPa*s at 20(C. You argue that the instant merchandise is properly classified under heading 2712, HTSUS, which provides in pertinent part for “[O]ther mineral waxes …”, or under heading 3405, HTSUS, which provides in pertinent part for “Polishes and creams …”. You provided two samples of the instant merchandise for review.
CBP Laboratory Report No. NY20091075, dated October 2, 2009, states that “Ultralube D-806 [is] a milky white liquid, [and] is an aqueous preparation of high density polyethylene wax.”
ISSUE:
What is the proper classification of Ultralube D-806 under the HTSUS?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 GRI may then be applied.
The 2012 HTSUS provisions at issue are as follows:
2712 Petroleum jelly; paraffin wax, microcrystalline petroleum wax, slack wax, ozokerite, lignite wax, peat wax, other mineral waxes and similar products obtained by synthesis or by other processes, whether or not colored:
2712.90 Other:
2712.90.20 Other
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3404 Artificial waxes and prepared waxes:
3404.90 Other:
3404.90.51 Other
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3405 Polishes and creams, for footwear, furniture, floors, coachwork, glass or metal, scouring pastes and powders and similar preparations (whether or not in the form of paper, wadding, felt, nonwovens, cellular plastics or cellular rubber, impregnated, coated or covered with such preparations), excluding waxes of heading 3404:
3405.90.00 Other
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3901 Polymers of ethylene, in primary forms:
3901.10 Polyethylene having a specific gravity of less than 0.94:
3901.10.50 Other
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3901.20 Polyethylene having a specific gravity of 0.94 or more:
3901.20.10 Having a relative viscosity of 1.44 or more
---------------------------------
3901.20.50 Other
Note 5 to Chapter 34, HTSUS, states, in pertinent part:
In heading 3404, subject to the exclusions provided below, the expression “artificial waxes and prepared waxes” applies only to:
(a) Chemically produced organic products of a waxy character, whether or not water-soluble;
* * *
The heading does not apply to:
* * *
(c) Mineral waxes or similar products of heading 2712, whether or not intermixed or merely colored; or
(d) Waxes mixed with, dispersed in or dissolved in a liquid medium (headings 3405, 3809, etc.).
Note 1 to Chapter 39, HTSUS, states, in pertinent part:
Throughout the tariff schedule the expression “plastics” means those materials of headings 3901 to 3914 which are or have been capable, either at the moment of polymerization or at some subsequent stage, of being formed under external influence (usually heat and pressure, if necessary with a solvent or plasticizer) by molding, casting, extruding, rolling or other process into shapes which are retained on the removal of the external influence.
* * *
Note 2(b) to Chapter 39, HTSUS, states, in pertinent part: “This chapter does not cover: … (b) Waxes of heading 2712 or 3404; …”.
Note 6(a) to Chapter 39, HTSUS, states, in pertinent part: “In headings 3901 to 3914, the expression ‘primary forms’ applies only to the following forms:
(a) Liquids and pastes, including dispersions (emulsions and suspensions) and solutions[.]”
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 EN 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 consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 27.12 states, in pertinent part:
The heading also includes products similar to those referred to in the heading and obtained by synthesis or by any other process (e.g., synthetic paraffin wax and synthetic microcrystalline wax). However, the heading does not include high polymer waxes such as polyethylene wax. These fall in heading 34.04.
EN 34.04 states, in pertinent part:
This heading covers artificial waxes (sometimes known in industry as “synthetic waxes”) and prepared waxes, as defined in Note 5 to this Chapter, which consist of or contain relatively high molecular weight organic substances and which are not separate chemically defined compounds. These waxes are:
(A) Chemically produced organic products of a waxy character, whether or not water-soluble. Waxes of heading 27.12, produced synthetically or otherwise (e.g., Fischer-Tropsch waxes consisting essentially of hydrocarbons) are, however, excluded. Water-soluble waxy products having surface-active properties are also excluded (heading 34.02).
* * *
The products described in (A), (B) and (C) above, when mixed with, dispersed (suspended or emulsified) in or dissolved in a liquid medium, are however excluded from this heading (headings 34.05, 38.09, etc.).
The waxes of paragraphs (A) and (C) above must have:
(1) a dropping point above 40°C; and
(2) a viscosity, when measured by rotational viscometry, not exceeding 10 Pa*s (or 10,000 cP) at a temperature of 10°C above their dropping point.
* * *
EN 34.05 states, in pertinent part:
These preparations may have a basis of wax, abrasives or other substances. Examples of such preparations are:
(1) Waxes and polishes consisting of waxes impregnated with spirits of turpentine or emulsified in an aqueous medium and frequently containing added colouring matter.
* * *
The General EN to Chapter 39 states, in pertinent part: “
Polymers consist of molecules which are characterised by the repetition of one or more types of monomer units.
* * *
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 “curing” 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.
* * *
In NY N063739, CBP classified the instant merchandise under heading 3901, HTSUS, which provides for “polymers of ethylene, in primary forms”. At the time of the original ruling request on June 4, 2009, you submitted product information, an MSDS and a list of ingredients. You described the instant merchandise as an aqueous wax additive in which linear low density polyethylene particles of an average particle size of about 8µm are dispersed in water, having a density of 1.0 g/ml. According to your original submission, the product was intended for incorporation into aqueous coatings such as water based printing inks to improve the surface qualities of the coating, ink and lacquers. Based on this information, CBP classified the instant product under heading 3901, HTSUS, specifically under subheading 3901.10.50, HTSUS, which provides for “Polymers of ethylene, in primary forms: Polyethylene having a specific gravity of less than 0.94: Other”.
After NY N063739 was issued, you requested a reconsideration of that ruling, alleging that the instant product is properly classified under heading 3405, HTSUS, as a polish. In the alternative, you suggest classification under heading 2712, HTSUS. A sample was submitted to the CBP Laboratory for review
If the instant merchandise is classifiable under headings 2712 or 3404, HTSUS, it is excluded from classification in heading 3901, HTSUS. See Note 2(b) to Chapter 39, HTSUS. Therefore, it is appropriate to first consider whether the instant merchandise is properly classified in these headings.
Heading 2712, HTSUS, provides in pertinent part for “other mineral waxes and similar products obtained by synthesis or by other processes, whether or not colored”. According to the EN, “the heading does not include high polymer waxes such as polyethylene wax.” See EN 27.12. The instant product is comprised of a mixture of two polyethylene waxes. Therefore, it is not properly classified under heading 2712, HTSUS.
Heading 3404, HTSUS, provides for “artificial waxes and prepared waxes”. According to Note 5(a) to Chapter 34, HTSUS, the phrase “artificial waxes and prepared waxes” includes “[c]hemically produced organic products of a waxy character, whether or not water-soluble”. EN 34.04 lists two properties that a wax of this type must have, which are (1) a dropping point above 40°C, and (2) a viscosity, when measured by rotational viscometry, not exceeding 10 Pa*s (or 10,000 cP) at a temperature of 10 °C above its dropping point. See EN(1) and (2) to 34.04. In your submission, you allege that the dropping point of the sample provided was above 40°C, and its viscosity, when measured at 10°C above its dropping point, does not exceed 10,000 cP, but provide no data to support this assertion.
However, it is irrelevant whether the product satisfies Note 5(a) to Chapter 34, HTSUS. The instant product is composed of two types of polyethylene wax dispersed in water. Because the polyethylene wax used in Ultralube D-806 is “mixed with, dispersed in or dissolved in a liquid medium”, it is excluded from heading 3404, HTSUS, by Exclusionary Note 5(d) to Chapter 34, HTSUS. Furthermore, because the instant product is not classifiable in heading 2712 or 3404, HTSUS, Note 2(b) to Chapter 39, HTSUS, does not operate to exclude the Ultralube D-806 from heading 3901, HTSUS.
In your submission, you argued that the instant merchandise is properly classified under heading 3405, HTSUS, which provides in pertinent part for “Polishes”. The term “polish” is not defined in the HTSUS or the ENs. The Merriam-Webster Online Dictionary defines the term “polish” as “3: a preparation that is used to produce a gloss and often a color for the protection and decoration of a surface.” See (last viewed on November 16, 2011). According to the ENs, one example of this type of preparation is a “polish[] consisting of waxes … emulsified in an aqueous medium …”. See EN(1) to heading 34.05.
Heading 3405, HTSUS, is an eo nomine provision, in that it provides for a specific commodity by name. Ordinarily, use is not a criteria considered when determining whether merchandise is embraced within an eo nomine provision. J.E. Mamiye & Sons, Inc. v. United States, 509 F. Supp. 1268, 1274 (Cust. Ct. 1980); Pistorino & Co. v. United States, 599 F.2d 444 (C.C.P.A. 1979); F.W. Myers & Co. v. United States, 24 Cust. Ct. 178, 184-185, C.D. 1228 (1950). However, in United States v. Quon Quon Co., 46 C.C.P.A. 70, 73 (1959), the Court of Customs and Patent Appeals stated:
Of all things most likely to help in the determination of the identity of a manufactured article, beyond the appearance factors of size, shape, construction and the like, use is of paramount importance. To hold otherwise would logically require the trial court to rule out evidence of what things actually are every time the collector thinks an article, as he sees it, is specifically named in the tariff act.
The Quon Quon case has come to stand for the proposition that use may be considered in determining the identity of an eo nomine provision. Sears Roebuck & Co. v. United States, 790 F. Supp. 299, 302 (Ct. Int’l. Trade 1992); J.E. Mamiye & Sons, Inc., 509 F. Supp. at 1274; Sanji Kobata et al. v. United States, 326 F. Supp. 1397, 1402-1403 (Cust. Ct. 1971); See also Headquarters Ruling Letter (HQ) H128496, dated March 30, 2011; HQ W968275, dated January 26, 2010; HQ 964444, dated December 18, 2001; HQ 963032, dated July 24, 2000; HQ 957997, dated August 7, 1995.
Use is simply one of the factors to be considered in determining whether merchandise falls within the scope of an eo nomine tariff provision. Myers v. United States, 969 F. Supp. 66, 72 (Ct. Int’l. Trade 1997); See also HQ 964444; HQ 957997. “The Court does not read the [Quon Quon] opinion to support the proposition that certain eo nomine provisions are in fact governed by use.” Myers, 969 F. Supp. at 72. In order to determine whether the instant merchandise is, in fact, a “polish,” CBP will examine the four factors laid out in Quon Quon; namely the size, shape, construction, and use of the articles.
The instant product, Ultralube D-806, is a liquid, composed of a mixture of linear low density polyethylene, water, oxidized polyethylene, and ethoxylated alcohols. The product data sheets indicate that the instant merchandise is sold to the end user in “120 kg drums” or “1000 kg IBC” containers. These data sheets also indicate that the instant merchandise is a “water based dispersion improving [sic] the surface qualities of aqueous lacquers and printing inks” and “can also be used for the production of water based deforming lubricants.” The data sheets further state that the instant merchandise “is stirred directly into the formulation” of these products. You allege that the instant merchandise may be used straight out of the container, as a polish. In particular, in your letter dated July 10, 2009, you state that it is sold as an aqueous leather polish, used to create a “Bianchini-Effect” in China. However, you provided no further evidence to support these assertions of such use in the United States.
The Quon Quon factors indicate that the instant product is not a “polish,” as that term is defined above. Even though the product consists of a wax dispersed in a liquid medium (which can be typical of a polish), it is not used as a polish in the United States. It is used as an additive for printing inks and for deforming lubricants. Even though you assert that the product is occasionally used as a polish, you have provided no evidence to support this claim. Furthermore, the product is sold in large volumes (120 kg drums and 1000 kg intermediate bulk containers), which, along with statements in the product data sheets, show that the product is added directly to the formulation of other products during a manufacturing process, rather than used straight out of the container as a leather polish, as you suggest. Therefore, the instant product is not properly classified as a “polish” under heading 3405, HTSUS.
The commenter argues that CBP did not give appropriate weight to Keim-Additec’s assertion that the instant product is used as a leather polish in China. However, this is not the case. As discussed above, use is simply one of the factors to be considered in determining whether merchandise falls within the scope of an eo nomine tariff provision. Myers v. United States, 969 F. Supp., at 72. Furthermore, CBP did take this use into account, but found that it was not controlling. Keim-Additec only sells the instant merchandise in 120kg or 1,000kg containers. The merchandise is sold in bulk form to manufacturers, who incorporate Ultralube D-806 into printing inks and deforming lubricants. Furthermore, Keim-Additec provided no evidence that the product is actually sold to leather goods manufacturers. Therefore, according to the information provided by Keim-Additec, the product’s use as an additive for printing inks and deforming lubricants, outweighs its alleged use as a polish.
The instant product is a mixture of polyethylene, oxidized polyethylene, and an ethoxylated alcohol, dispersed in water. As such, it is properly classified under heading 3901, HTSUS, which provides for “Polymers of ethylene, in primary forms”. See Note 6(a) to Chapter 39, HTSUS.
The commenter argues that the instant product is not properly classified in heading 3901, HTSUS, because it “is not PE, identified as a plastic, in primary form and thermo setting/forming in character.” However, polyethylene is a plastic material, because it is “capable, either at the moment of polymerization or at some subsequent stage, of being formed under external influence (usually heat and pressure, if necessary with a solvent or plasticizer) by molding, casting, extruding, rolling or other process into shapes which are retained on the removal of the external influence.” See Note 1 to Chapter 39, HTSUS. Furthermore, polyethylene is a “polymer,” because it is made up of repeating units of ethylene monomers. See General EN to Chapter 39. Finally, the instant product is in a “primary form” because it consists of low density polyethylene mixed with additives and water. See Note 6(a) to Chapter 39, HTSUS; See also HQ965290, dated June 5, 2002; General EN to Chapter 39. Therefore, CBP does not find the commenter’s argument to be persuasive.
In NY N063739, CBP classified the instant product under heading 3901, HTSUS, specifically under subheading 3901.10.50, HTSUS, which provides for “Polymers of ethylene, in primary forms: Polyethylene having a specific gravity of less than 0.94: Other”. “The specific gravity of a material is defined as the ratio of its density to the density of some standard material, such as water at a specified temperature, for example, 60(F (15(C) …”. McGraw-Hill Concise Encyclopedia of Science and Technology, 5th Ed. (McGraw-Hill, 2004), p. 2073. Water at room temperature has a density of 1.0 g/ml (or 1.0 g/cm3). CBP has previously observed that the specific gravity of a liquid is numerically equal to its density. See NY 803092, dated October 17, 1994.
The MSDS contained in your original submission, dated June 4, 2009, states that the density of the instant product is 1.0 g/ml, which translates to a specific gravity of 1.0. The MSDS contained in your request for reconsideration, dated July 10, 2009, states that the density of the instant product is 0.96 g/cm3, which translates to a specific gravity of 0.96. Even though CBP cannot be certain which of these statements is correct, we note that the specific gravity provided in both documents is greater than 0.94.
Classification at the 8-digit level requires consideration of the relative viscosity of the instant product. The term “viscosity” means, “For a laminar flow of a fluid the ratio of the shear stress to the velocity gradient perpendicular to the plane of shear.” IUPAC Compendium of Chemical Terminology, 2nd Ed. (available at ). The term “relative viscosity” is defined as “The ratio of the viscosity of the solution, ?, to the viscosity of the solvent, ?s, i.e., ?r=?/?s.” IUPAC Compendium of Chemical Terminology. According to your submission dated April 3, 2012, the viscosity (?) of Ultralube D-806 at 20(C is between 200 and 400 mPa*s. Water is generally assumed to have a viscosity (?s) of 1.0 mPa*s at 20(C. See, e,g., Kestin, et. al., “J. Phys. Chem. Ref. Data,” Vol. 7, No. 3 (1978). Thus, the relative viscosity of Ultralube D-806 is between 200 and 400, depending on the actual viscosity of the solution. Therefore, as the instant product has a specific gravity above 0.94, and a relative viscosity above 1.44, it is properly classified under subheading 3901.20.10, HTSUS, which provides for “Polymers of ethylene, in primary forms: Polyethylene having a specific gravity of 0.94 or greater: Having a relative viscosity of 1.44 or more”.
HOLDING:
By application of GRI 1, the instant Ultralube D-806 product is classified under heading 3901, HTSUS, specifically under subheading 3901.20.10, HTSUS, which provides for “Polymers of ethylene, in primary forms: Polyethylene having a specific gravity of 0.94 or greater: Having a relative viscosity of 1.44 or more”. The column one, general rate of duty is 6.5% ad valorem.
Duty rates are provided for convenience only 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.
EFFECT ON OTHER RULINGS:
New York Ruling Letter N063739, dated June 17, 2009, is hereby REVOKED in accordance with the above analysis. In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division