OT:RR:CTF:CPMM H289681 APP
Center Director
Industrial and Manufacturing Materials
Center of Excellence and Expertise (CEE)
Port of Los Angeles/Long Beach
301 East Ocean Boulevard, Suite 1400
Long Beach, CA 90802
Attn.: Fernando Biscarra, Supervisory Import Specialist
RE: Protest and Application for Further Review No. 1101-17-100277; Tariff classification of non-latex tourniquet bands
Dear Center Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest Number 1101-17-100277, timely filed on March 31, 2017, on behalf of IPC, Inc. (“protestant”). The AFR concerns U.S. Customs and Border Protection’s (“CBP”) tariff classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of non-latex tourniquet bands. Our response follows.
FACTS:
The goods at issue are non-latex tourniquet bands of unvulcanized styrene-butadiene-styrene (“SBS”) block copolymer. They come in strips and are used as a constricting or compressing device to control venous and arterial circulation for a period of time.
On January 27, 2017, CBP Laboratories and Scientific Services (“LSS”), Chicago Laboratory reported that a product sample of non-latex tourniquets, submitted by protestant, consisted of “five, colored, flexible strips. The name-brand is ‘Platinum Code.’ The strips are identical in composition which is that of unvulcanized rubber.” CBP LSS, Chicago Laboratory determined that the strips were of unvulcanized SBS block copolymer, a thermoplastic elastomer, having an average thickness of 0.6 mm.
The Protest and AFR cover one entry of the subject merchandise made on October 22, 2015, under subheading 3920.99.20, HTSUS, dutiable at 4.2% ad valorem, which provides for “Other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials: Of other plastics: Of other plastics: Film, strip and sheets, all the foregoing which are flexible: Other.” On October 14, 2016, the same entry was liquidated under subheading 3926.90.99, HTSUS, dutiable at 5.3% ad valorem, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.” This Protest and AFR claim classification under subheading 4005.91.00, HTSUS, free of duty, which provides for “Compounded rubber, unvulcanized, in primary forms or in plates, sheets or strip: Other: Plates, sheets, and strip.”
ISSUE:
Whether the subject merchandise is classifiable as other strip of plastic under heading 3920, HTSUS, or as other article of plastic under heading 3926, HTSUS, or as compounded rubber under heading 4005, HTSUS.
LAW AND ANALYSIS:
CBP first notes that the matter is protestable under 19 U.S.C. § 1514(a)(2), as a matter on classification. The AFR was timely filed within 180 days of liquidation of the entry. See 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 this protest is properly accorded to protestant pursuant to 19 C.F.R.
§ 174.24(b) because the decision against which the protest was filed involves questions of law or fact, which have not been ruled upon by the Commissioner of Customs or his designee, or by the courts.
Merchandise imported into the United States is classified under the HTSUS, in accordance with the General Rules of Interpretation (“GRIs”). 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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
The HTSUS provisions under consideration are as follows:
3920 Other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
4005 Compounded rubber, unvulcanized, in primary forms or in plates, sheets or strip:
Note 2(l) to chapter 39, HTSUS, states, that this chapter does not cover “Synthetic rubber, as defined for the purposes of chapter 40, or articles thereof.”
Note 10 to chapter 39, HTSUS, states that, “In headings 3920 and 3921, the expression ‘plates, sheets, film, foil and strip’ applies only to plates, sheets, film, foil and strip (other than those of chapter 54) and to blocks of regular geometric shape, whether or not printed or otherwise surface-worked, uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use).”
Note 1 to chapter 40, HTSUS, states that, “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.”
Note 4 to chapter 40, HTSUS, states:
In note 1 to this chapter and in heading 4002, the expression “synthetic rubber” applies to:
Unsaturated synthetic substances which can be irreversibly transformed by vulcanization with sulfur into non-thermoplastic substances which, at a temperature between 18°C and 29°C, 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;
Thioplasts (TM); and
Natural rubber modified by grafting or mixing with plastics, depolymerized natural rubber, mixtures of unsaturated synthetic substances with saturated synthetic high polymers provided that all the above-mentioned products comply with the requirements concerning vulcanization, elongation and recovery in (a) above.
In interpreting the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) may be utilized. The ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 39.20 states, in relevant part:
This heading covers plates, sheets, film, foil and strip of plastics (which are not reinforced, laminated, supported or similarly combined with other materials), other than those of heading 39.18 or 39.19 … According to Note 10 to this Chapter, the expression “plates, sheets, film, foil and strip” applies only to plates, sheets, film, foil and strip and to blocks of regular geometric shape, whether or not printed or otherwise surface worked (for example, polished, embossed, coloured, merely curved or corrugated), uncut or cut into rectangles (including squares) but not further worked ….
EN 39.26 states, in relevant part:
This heading covers articles, not elsewhere specified or included, of plastics (as defined in Note 1 to the Chapter) or of other materials of headings 39.01 to 39.14.
The General ENs to chapter 40 state, in relevant part:
Definition of rubber
The expression “rubber” is defined in Note 1 to this Chapter. Where this expression is used without qualification in this and other Chapters of the Nomenclature, it means the following products:
… (2) Synthetic rubber as defined in Note 4 to this Chapter. For the purpose of the test required by Note 4, a sample of the unsaturated synthetic substance or a substance of a kind specified in Note 4 (c) (in the condition of unvulcanised raw material) is to be vulcanised with sulphur and then subjected to the elongation and recovery test (see the Explanatory Note to heading 40.02). Accordingly, in the case of substances containing materials not permitted by Note 4, such as mineral oil, the test is to be carried out on a sample which does not contain such materials or from which such materials have been removed. In the case of vulcanised rubber articles, which cannot be tested as such, it is necessary to obtain a sample of the unvulcanised raw material from which the articles are made, in order to perform the test. No test is, however, required for thioplasts which are regarded as synthetic rubber by definition ….
For the purpose of vulcanisation, in addition to vulcanising agents, certain other substances are also normally added, such as accelerators, activators, retarders, plasticisers, extenders, fillers, reinforcing agents or any of the additives mentioned in Note 5 (B) to this Chapter. Such vulcanisable mixtures are regarded as compounded rubber and are classified in heading 40.05 or 40.06 depending upon the form in which they are presented ….
Scope of the Chapter
… (c) Heading 40.05 covers compounded rubber, unvulcanised, in primary forms or in plates, sheets or strip ….
EN 40.05 states, in relevant part:
This heading covers compounded rubber which is unvulcanised and is in primary forms or in plates, sheets or strip.
The term “rubber” has the same meaning as in Note 1 to this Chapter. The heading therefore covers natural rubber, balata, gutta percha, guayule, chicle and similar natural gums, synthetic rubber, factice derived from oils, and such substances reclaimed, provided they have been compounded with other substances ….
“It is well settled that the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct.” Aluminum Co. of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398, C.A.D. 1102 (1973) [hereinafter Alcoa]. Absent a conclusive showing that the testing method used by the CBP laboratory is in error, or that the CBP laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 81 Cust. Ct. 87, 90-91, 462 F. Supp. 378, 381-82, Cust. Dec. 4772 (1978) (citations omitted). “If a prima facie case is made out, the presumption is destroyed, and the Government has the burden of going forward with the evidence.” Alcoa, 60 C.C.P.A. at 151, 477 F.2d at 1399.
CBP LSS, Chicago Laboratory determined that the instant strips are of unvulcanized SBS block copolymer, which is not synthetic rubber. As such, the instant thermoplastic elastomer (“TPE”) substance does not meet the definition of synthetic rubber of chapter 40 in note 4(a), HTSUS to this chapter. CBP has previously classified products formed from TPEs as articles of chapter 39, HTSUS, because they do not meet the terms of note 4(a) to chapter 40. See New York Ruling Letter (“NY”) L81073, dated December 13, 2004 (automotive seals composed of TPE classified in chapter 39, HTSUS); NY N007510, dated March 8, 2007 (polybands made of SBS block copolymer classified in chapter 39, HTSUS). Since the instant TPE material is not synthetic rubber and does not meet the terms of note 4 to chapter 40, it would be classified in chapter 39, as an article of plastic just like the TPE substance in NY L81073 and the SBS block copolymer in NY N007510.
Because the tourniquet bands are imported in the form of strips of plastics, not further worked, they are provided for under heading 3920, HTSUS, specifically under
subheading 3920.99, HTSUS, and are excluded from consideration under the more general “basket provision” of heading 3926, HTSUS, as “[o]ther articles of plastics ….”
Accordingly, the tourniquet bands are classified in heading 3920, HTSUS, under subheading 3920.99.20, HTSUS.
HOLDING:
By application of GRIs 1 and 6, the subject non-latex tourniquets are classified under heading 3920, HTSUS, specifically under subheading 3920.99.20, HTSUS, which provides for “Other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials: Of other plastics: Of other plastics: Film, strip and sheets, all the foregoing which are flexible: Other.” The column one, general rate of duty at the time of entry was 4.2% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at https://hts.usitc.gov/current.
You are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance. A copy of this decision should be attached to the Form 19 Notice of Action.
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, through its counsel, 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, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/, which can be found on the CBP website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division