• HQ H193655
• Sep 20, 2012

• Type : Classification • HTSUS : 3907.20.00
•  Related:   R03501; 967088; B84164; N116392   

CLA-2 OT:RR:CTF:TCM H193655 AMM

Port Director
U.S. Customs and Border Protection
Service Port – Chicago
5600 Pearl Street
Rosemont, IL 60018
Attn: Mary Lou Belfiore, SIS

RE: Tariff classification of Miramer M3130, CAS No. 28961-43-5; Protest Number 3901-11-100810

Dear Port Director:

This is in reply to an application for further review (AFR) of protest number 3901-11-100810, dated July 29, 2011, filed on behalf of The Rahn USA Corporation (Protestant), against U.S. Customs and Border Protection’s (CBP) reclassification and subsequent liquidation of one entry at the Service Port of Chicago (the Port) of a chemical product identified as “Miramer M3130,” CAS No. 28961-43-5, also known as trimethylolpropane ethoxylated triacrylate, under the Harmonized Tariff Schedule of the United States (HTSUS). We have also considered a supplemental submission, filed on April 3, 2012.

FACTS:

The product at issue in Protest No. 3901-11-100810 is identified as Miramer M3130, an acrylic acid ester and a reactive diluent for radically curable inks, coatings, and adhesives. It is produced by first reacting trimethylpropane with ethylene oxide (an epoxide), and then reacting the resulting ethoxylated trimethylpropane with acrylic acid and. Protestant acknowledges that this product is also referred to as trimethylolpropane ethoxylated triacrylate (TMPEOTA), CAS No. 28961-43-5. A chemical diagram of Miramer M3130 is reproduced below:


 Miramer M3130 Trimethylolpropane Ethoxylated Triacrylate CAS No. 28961-43-5   The brackets in the above diagram indicate that the lengths of the chains may vary depending on the degree of ethoxylation, which is in turn dependent on the manufacturing process. According to Protestant’s April 4, 2012 submission, Miramer M3130 includes several forms of TMPEOTA. Specifically, Protestant states that a “lack of discrimination among the reactive species yields a statistical distribution of structures, some with more than 3 [ethylene oxide] units and some with less.” See Attachment to Protestant’s April 4, 2012 submission, Slide 5. The various forms of TMPEOTA are distinguished by their molecular weight; forms with a higher degree of ethoxylation have a corresponding increase in their molecular weight. According to Protestant, a solution of the Miramer M3130 product contains a distribution of various TMPEOTA compounds, with molecular weights between 380 g/mol and over 1000 g/mol. See Attachment to Protestant’s April 4, 2012 submission, Slide 7. The instant merchandise contains a mixture of several different compounds, all of which are represented by CAS No. 28961-43-5. Some examples of TMPEOTA compounds are pictured below:




 C19H28O8 (Molecular Wt. = 384 g/mol) l=1, m=1, n=0 C21H32O9 (Molecular Wt. = 428 g/mol) l=1, m=1, n=1 C29H48O13 (Molecular Wt. = 604 g/mol) l=5, m=1, n=1   The entry took place at the Port on May 19, 2010, and was liquidated on April 15, 2011. The merchandise was entered under heading 2916, HTSUS, which provides in pertinent part for “Unsaturated acyclic monocarboxylic acids, cyclic monocarboxylic acids, their anhydrides, halides, peroxides and peroxyacids”. The Port liquidated the instant merchandise under heading 3907, HTSUS, which provides, in pertinent part, for “Polyacetals, other polyethers and epoxide resins, in primary forms”. ISSUE:

What is the correct classification of Miramer M3130 under the HTSUS?

LAW AND ANALYSIS:

Initially we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest was timely filed on July 29, 2011, within 180 days of liquidation, pursuant to 19 U.S.C. §1514(c)(3).

Further review of Protest 3901-11-100810 was properly accorded to protestant pursuant to 19 C.F.R. §174.24. In accordance with Section 174.24(c), the protest involves matters previously ruled on by the Commissioner of Customs or his designee (namely, NY R03501), but facts are alleged or legal arguments are presented which were not presented at the time of the original ruling.

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:

2916 Unsaturated acyclic monocarboxylic acids, cyclic monocarboxylic acids, their anhydrides, halides, peroxides and peroxyacids; their halogenated, sulfonated, nitrated or nitrosated derivatives: Unsaturated acyclic monocarboxylic acids, their anhydrides, halides, peroxides, peroxyacids and their derivatives: 2916.12 Esters of acrylic acid: 2916.12.50 Other --------------------------- 3907 Polyacetals, other polyethers and epoxide resins, in primary forms; polycarbonates, alkyd resins, polyallyl esters and other polyesters, in primary forms: 3907.20.00 Other polyethers

Note 1 to Chapter 29, HTSUS, states, in pertinent part: “Except where the context otherwise requires, the headings of this chapter apply only to: (a) Separate chemically defined organic compounds, whether or not containing impurities; …”.

Note 2 to Chapter 39, HTSUS, states, in pertinent part: “This chapter does not cover: … (c) Separate chemically defined organic compounds (chapter 29); …”.

Note 3 to Chapter 39, HTSUS, states, in pertinent part: “Headings 3901 to 3911 apply only to goods of a kind produced by chemical synthesis, falling in the following categories: … (e) Resols (heading 3909) and other prepolymers.”

Note 6 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 (EN), 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).

The General EN to Chapter 29 states, in pertinent part:

(A) Chemically defined compounds (Chapter Note 1)

A separate chemically defined compound is 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. In a crystal lattice, the molecular species corresponds to the repeating unit cell. * * *

The General EN to Chapter 39 states, in pertinent part:

Scope of headings 39.01 to 39.11

The scope of these headings is governed by Note 3 to this Chapter. These headings apply only to goods of a kind produced by chemical synthesis, falling in the following categories: * * * (e) Resols (heading 39.09) and other prepolymers. Prepolymers are products which are characterised by some repetition of monomer units altough they may contain unreacted monomers. Prepolymers are not normally used as such but are intended to be transformed into higher molecular weight polymers by further polymerisation. Therefore the term does not cover finished products, such as di-isobutylenes (heading 27.10) or poly(oxyethylene) (polyethylene glycol) with very low molecular weight (heading 38.24). Examples of prepolymers are epoxides based on bisphenol-A or phenol-formaldehyde, epoxidised with epichlorohydrin, and polymeric isocyanates. * * *

The EN to heading 39.07 states, in pertinent part:

This heading covers: * * * (2) Other polyethers. Polymers obtained from epoxides, glycols or similar materials and characterised by the presence of ether-functions in the polymer chain. They are not to be confused with the polyvinyl ethers of heading 39.05, in which the ether-functions are substituents on the polymer chain. The most important members of this group are poly(oxyethylene) (polyethylene glycol), polyoxypropylene and polyphenylene oxide (PPO) (more correctly named poly(dimethylphenylene-oxide)). These products have a variety of uses, PPO being used, like the polyacetals, as engineering plastics, polyoxypropylene as an intermediate for polyurethane foam. * * *

Protestant argues that the merchandise is a “separate chemically defined organic compound” within the meaning of Note 1(a) to Chapter 29, HTSUS, and should therefore be excluded from heading 3907, HTSUS, by operation of Note 2(c) to Chapter 39, HTSUS. Protestant further argues that the merchandise is properly classified under heading 2916, HTSUS.

The courts have previously considered the definition of the term “separate chemically defined compound” within the meaning of the HTSUS. In Metchem, Inc. v. United States, 441 F.Supp.2d 1269 (Ct. Int’l. Trade 2006) (Metchem I), aff’d 513 F.3d 1342 (Fed. Cir. 2008), the Court of International Trade (CIT) considered the classification of “nickel carbonate” under the HTSUS. This merchandise was composed of a mixture of nickel carbonate, nickel hydroxide, and water, and contained between 52% and 55% nickel. Id., 441 F.Supp.2d at 1271. It was represented by the formula xNiCO3 + yNi(OH)2 + zH2O, which indicates variation in the exact proportion of the three chemicals (i.e., the values of x, y, and z). The CIT considered whether this product was a separate chemically defined compound under Note 1(a) to Chapter 28, HTSUS. According to the court:

A separate chemically defined compound is 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. In a crystal lattice, the molecular species corresponds to the repeating unit cell. The elements of a separate chemically defined compound combine in a specific characteristic proportion determined by valency and the bonding requirements of individual atoms. The proportion of each element is constant and specific to each compound and it is therefore said to be stoichiometric. * * *

Id., at 1273; See also Metchem, Inc. v. United States, 513 F.3d at 1346 (Fed. Cir. 2008) (Metchem II); General EN to Chapter 28. The CIT concluded that the “nickel carbonate” product at issue did not meet the definition of “separate chemically defined compound” because the product was a variable mixture of nickel carbonate, nickel hydroxide, and water. Metchem I, at 1274. This position was affirmed by the Court of Appeals for the Federal Circuit (CAFC), which stated that “A material consisting of several chemical compounds in a variable ratio - particularly one that is variable because of the specific details of the process by which the material is made - is not a separate chemically defined compound because it cannot be represented by a precise formula.” Metchem II, at 1347.

The CIT has also noted that “A mixture of various ‘separate chemically defined compounds’ is not itself a ‘separate chemically defined compound.’” Avecia, Inc. v. United States, 469 F. Supp. 2d 1269, 1287 (Ct. Int’l. Trade 2006). In addition, the CIT has stated that “The term ‘chemical compound’ usually refers to ‘a substance composed chemically of two or more elements in definite proportions (as opposed to a mixture).’” USR Optonix, Inc. v. United States, 362 F. Supp. 2d 1365, 1371 FN3 (Ct. Int’l. Trade 2005) (citing the Oxford English Dictionary, 629, vol. III (2d ed. 1989).

Protestant asserts that the instant product, Miramer M3130, is a “separate chemically defined organic compound” within the meaning of Note 1(a) to Chapter 29, HTSUS. Furthermore, Protestant asserts that New York Ruling Letter (NY) N116392, dated August 5, 2010, and Headquarters Ruling Letter (HQ) 967088, dated July 8, 2004, support this position.

The court cases discussed above concern the definition of the phrase “separate chemically defined compound,” as it appears in Note 1(a) to Chapter 28, HTSUS. The issue in this case is whether the instant product, Miramer M3130, falls within the meaning of the phrase “separate chemically defined organic compound,” as it appears in Note 1(a) to Chapter 29, HTSUS. Because the two phrases differ only as to whether the compound qualifies as “organic,” it is CBP’s position that the logic of the CIT and CAFC, with regard to the definition of the phrase “separate chemically defined compound,” applies to the application of Note 1(a) to Chapter 29, HTSUS. CBP also notes that the term “organic,” within the context of this Note, means: “being, containing, or relating to carbon compounds esp. in which hydrogen is attached to carbon whether derived from living organisms or not …”. Webster’s Third New International Dictionary (Merriam-Webster, 1993).

CBP does not dispute that the instant product is “organic,” as it contains carbon and hydrogen atoms. However, it is not a “separate chemically defined organic compound” within the meaning of Note 1(a) to Chapter 29, HTSUS. According to Protestant, Miramer M3130 is a mixture of various forms of TMPEOTA, each distinguished by their molecular weight and degree of ethoxylation. Protestant, in its April 2, 2012 submission, admits that the “lack of discrimination among the reactive species yields a statistical distribution of structures, some with more than 3 [ethylene oxide] units and some with less.” Furthermore, protestant admits to at least four different forms of TMPEOTA in its product, and its attached diagrams indicate a statistical possibility of many more forms in the product. Because Miramer M3130 is not itself a chemical compound - but is instead a mixture of many different compounds - it is not a “separate chemically defined organic compound” within the meaning of Note 1(a) to Chapter 29, HTSUS. See Metchem II, at 1347; Avecia, at 1287. Therefore, it is not properly classified under heading 2916, HTSUS, and Note 2(c) to Chapter 39, HTSUS, does not operate to exclude Miramer M3130 from classification under the headings of Chapter 39, HTSUS.

Protestant asserts that HQ 967088 and NY N116392 direct CBP to classify Miramer M3130 as a “separate chemically defined organic compound.” In HQ 967088, CBP considered the classification of the product Purasolv® Elect, whose chemical name is Ethyl (S)-2-Hydroxy Propionate (CAS No. 687-47-8). It is an ester of lactic acid, a carboxylic acid with an alcohol function. Its chemical formula is C5H10O3. It is represented by the chemical diagram below:


 Purasolv® Elect (Ethyl (S)-2-Hydroxy Propionate), CAS No. 687-47-8   Purasolv® Elect, the product at issue in HQ 967088, has a composition defined by a constant ratio of elements, and can be represented by a definitive structural diagram. See General EN(A) to Chapter 29. Therefore, CBP found that this product was considered a “separate chemically defined organic compound” of Note 1(a) to Chapter 29, HTSUS, and classified the product under heading 2918, HTSUS. By contrast, the instant product, Miramer M3130, is a mixture of several different compounds, rather than one single compound. Therefore, the product of HQ 967088 is distinguishable from the instant product.

In NY N116392, CBP considered the classification of polyethylene glycol dimethyl ether (CAS No. 24991-55-7). It is an ether used in a chemical manufacturing process. Its chemical formula is CH3O(CH2CH2O)nCH3. It is represented by the chemical diagram below:


 Polyethylene Glycol Dimethyl Ether, CAS No. 24991-55-7   CBP found that the above product was properly classified under heading 3907, HTSUS, as an “other polyether”. CBP notes that, if the product was a “separate chemically defined organic compound,” as Protestant suggests, it would have been excluded from classification under heading 3907, HTSUS, by operation of Note 2(c) to Chapter 39, HTSUS. Therefore, this ruling does not support Protestant’s argument.

Heading 3907, HTSUS, provides in pertinent part for “Polyacetals, other polyethers and epoxide resins, in primary forms …”. CBP has previously considered whether TMPEOTA is properly classified under this heading.

In NY R03501, dated May 12, 2006, CBP stated:

The product described as trimethylolpropane ethoxylated triacrylate (TMPEOTA) CAS-28961-43-5 is a polyether prepolymer liquid resin described as a reactive diluent compatible with a wide range of acrylated resins used in radiation curing applications, including overprint varnishes, inks and coatings. Based on Customs Laboratory Report NY20060333 dated April 10, 2006: the product labeled TMPEOTA, a clear liquid, is a prepolymer, other polyether, in primary form. * * *

According to CBP Lab Report No. NY20060333, TMPEOTA is a trifunctional diluting oligomer which polymerizes when exposed to sources of free radicals. The Report also states that the product of NY R03501 consists of only one or two repeating units. CBP classified the merchandise considered in NY R03501 under heading 3907, HTSUS, specifically under subheading 3907.20.00, HTSUS, which provides in pertinent part for “[O]ther polyethers … in primary forms; …: Other polyethers”. See also NY B84164, dated June 10, 1997 (classifying TMPEOTA under subheading 3907.20.00, HTSUS).

The instant product, Miramer M3130, is described as an acrylic acid ester and a reactive diluent for radically curable inks, coatings, and adhesives. It is used as a component in two part resin systems with urethane acrylates, polyester or epoxy acrylates, and acrylate monomers. Protestant notes that the TMPEOTA product considered in NY R03501 is similar to Miramer M3130. See Protestant’s July 28, 2011 submission, p. 2.

Note 3(e) to Chapter 29, HTSUS, states that headings 3901 through 3911, HTSUS, include “prepolymers.” This term is defined in the ENs:

Prepolymers are products which are characterised by some repetition of monomer units altough they may contain unreacted monomers. Prepolymers are not normally used as such but are intended to be transformed into higher molecular weight polymers by further polymerisation. * * *

See General EN(e) to Chapter 39. The instant product meets the above definition of “prepolymer,” as 1) it is characterized by some repetition of monomer units and contains unreacted monomers, and 2) and is intended to be transformed into higher molecular weight polymers through a curing process.

Heading 3907, HTSUS, specifically provides for “other polyethers.” The term “other polyethers” is defined in the ENs:

Other polyethers. Polymers obtained from epoxides, glycols or similar materials and characterised by the presence of ether-functions in the polymer chain. They are not to be confused with the polyvinyl ethers of heading 39.05, in which the ether-functions are substituents on the polymer chain. * * *

Miramer M3130 is a prepolymer obtained from the reaction of trimethylpropane with ethylene oxide (an epoxide) and acrylic acid. The chemical structure and molecular weight are dependant on the degree of ethoxylation – specifically on the length of the ether-function groups of the molecule. Therefore, the instant product is a polyether prepolymer, in liquid form. It is properly classified under heading 3907, HTSUS, specifically under 3907.20.00, HTSUS, which provides for Polyacetals, other polyethers and epoxide resins, in primary forms; polycarbonates, alkyd resins, polyallyl esters and other polyesters, in primary forms: Other polyethers”. See NY R03501; NY B84164.

HOLDING:

By application of GRI 1, the instant product known as Miramer M3130, CAS No. 28961-43-5, which is the subject of protest number 3901-11-100810, is classified in heading 3907, HTSUS, specifically under 3907.20.00, HTSUS, which provides for Polyacetals, other polyethers and epoxide resins, in primary forms; polycarbonates, alkyd resins, polyallyl esters and other polyesters, in primary forms: Other polyethers”. The column one, general rate of duty is 6.5% ad valorem. You are instructed to DENY the protest in full.

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 the decision Regulations and Rulings of the Office of International Trade 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