CLA-2 OT:RR:CTF:TCM W968389 ARM
Barry E. Cohen, Esq.
Crowell Moring
1001 Pennsylvania Avenue, NW
Washington, D. C. 20004-2595
Re: Classification of Hyperform® HPN-68L; CAS Number 351870-33-2
Dear Mr. Cohen:
This is in reply to your letter, dated August 25, 2006, on behalf of your client, Milliken & Company, requesting reconsideration of Headquarters Ruling Letter (HQ) 968189, dated June 6, 2006, classifying Hyperform® HPN-68L in heading 3824, of the Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for: “Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included: . . . .” You request classification in heading 2917, HTSUS, which provides for: “Polycarboxylic acids, their anhydrides, halides, peroxides and peroxyacids; their halogenated, sulfonated, nitrated or nitrosated derivatives: . . . .”
In reaching our determination, we have also considered your supplemental submission of May 27, 2008, comments made in a telephone conference with Michael Mannion, Chemical Engineer of Milliken & Company, on August 11, 2008, and supplemental information from Mr. Mannion, received by electronic mail on August 12, 2008. We have decided HQ 968189 is in error.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), 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), a notice was published in the CUSTOMS BULLETIN, Volume 42, No. 44, on October 23, 2008, proposing to revoke HQ 968189. No Comments were received in response to the notice.
FACTS:
Hyperform HPN-68L is a nucleating additive for polyolefin polymers. It is composed of 80 percent Bicylco[2.2.1]heptane-2,3-dicarboxylic acid, disodium salt, (1R, 2R, 3S, 4S)-rel- and 20 percent anti-caking agent known as Sylobloc® 250, a blend of amorphous silicon dioxide and (Z)-13-docosenamide. CBP Laboratory Report
# 20061574 indicates that the amount of Sylobloc® 250 is too low to act as a slip and antiblock agent. The laboratory report also highlights the following language from U.S. Patent #6,946,507, filed October 3, 2003 on behalf of Milliken, which discusses the effect of Sylobloc® 250 on the merchandise as follows:
Another alternative method of utilizing such a combination of components involves the initial addition of from 0.1 to 5 percent by weight of the anticaking agent to the bicyclic nucleator formulation. It has been found that for storage purposes, this low amount of anticaking additive provides the desired effect of preventing agglomeration and ultimate cementation. Subsequently, then, a larger amount of anticaking agent in the range of from 10-20 percent by weight, for instance, may be added to a bicyclic nucleator formulation during introduction within a target molten thermoplastic. As noted above, the high amount of anticaking agent appears to contribute to the ability of the bicyclic nucleator to impart higher crystallization temperatures and simultaneous lower haze measurements to such target thermoplastics. Thus, instead of relying upon inclusion of large amounts of anticaking agents during initial bicyclic nucleator storage, it is thus possible to delay addition of such large amounts, thereby permitting an optimization of greater amounts of the nucleator compound to be stored at the highest available level of anticaking (anti-agglomeration, anticementation, etc.), without needing to include larger amounts of such agents that would not contribute any further reductions in cementation propensities during storage. . . .
The CBP Laboratory Report concluded, “Based on the cited patent reference it apperars Sylobloc® 250 was added at the 20% level to contribute to the ability of the nucleator to impart higher crystallization temps and lower haze.”
ISSUE:
Whether HPN-68L, containing 20 percent Sylobloc® 250, is a separate chemically identifiable compound under Note 1 to chapter 29.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." If 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, in order.
The HTSUS provisions under consideration are as follows:
2917 Polycarboxylic acids, their anhydrides, halides, peroxides and peroxyacids; their halogenated, sulfonated, nitrated or nitrosated derivatives.”
2917.20.00 Cyclanic, cyclenic or cycloterpenic polycarboxylic acids, their anhydrides, halides, peroxides, peroxyacids and their derivatives
* * * * *
3824 Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included:
3824.90 Other:
Other:
Other:
3824.90.91 Other.
Note 1 to Chapter 29, HTSUS, states, in pertinent part, the following:
1. 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; . . .
* * * * *
(f) The products mentioned in (a), (b), (c), (d) or (e) above with an added stabilizer (including an anticaking agent) necessary for their
preservation or transport; . . .
* * * * *
In HQ 968189, we stated that “[t]he threshold question in this matter is whether Hyperform® HPN-68L is a separate chemically defined compound containing only substances allowed under Note 1 to Chapter 29, HTSUSA. . . . If the SYLOBLOC® 250 can be regarded merely as an anticaking agent (permitted under Note 1(f) to Chapter 29, HTSUSA), the headings of Chapter 29 may be considered for classification of Hyperform® HPN-68L. If this blend cannot, the headings of Chapter 29 will not be applicable to Hyperform® HPN-68L.” We maintain that this is the essential issue in this classification determination. However, we believe our specific finding is in error. In HQ 968189, we specifically stated that “[b]ased on product information, your letters, and our lab testing of the additive (footnote omitted), we find that Sylobloc® 250 is purposely added to Hyperform® HPN-68L not only to absorb excess moisture and prevent agglomeration, but also to act as an antiblocking/anti-slip agent in the formation of polyolefins.” This finding is contradicted by the statement in CBP Laboratory Report # 20061574 that “ . . . the amount of Sylobloc 250 is too low to act as a slip and antiblock agent . . . .” It is CBP’s practice not to disregard the reports of CBP laboratories. See Customs Directive 099-3820-002, issued May 4, 1992; see also Consolidated Cork Corp. v. United States, 54 Cust. Ct. 83, C.D. 2512 (1965). Therefore, we are convinced that the Sylobloc® 250 does not perform as an antiblocking or anti-slip agent in the instant product.
However, the question remains whether the 20 percent Sylobloc® 250 content in the instant product is solely an anti-caking agent. In your submission dated May 27, 2008, you provided evidence reprinted from patent # 6,946,507, that the crystallization temperature and haze measurements are essentially the same for the jet milled product without Sylobloc® 250 and the product with the Sylobloc® 250 without milling. The patent language notwithstanding, the higher percentages of anticaking agent maintain the as-manufactured characteristics of the HPN-68L as a free-flowing, fine powder, which itself imparts higher crystallization temperatures and lower haze measurements during the processing of the final products it is used in.
We find that Sylobloc® 250 in HPN-68L is an anti-caking agent. It is therefore a permissible addition to a separate chemically defined organic compounds under note 1(f) to chapter 29. Our laboratory report concurs that the HPN-68L contains Bicylco[2.2.1]heptane-2,3-dicarboxylic acid, disodium salt, (1R, 2R, 3S, 4S)-rel-, a cyclanic dicarboxylic acid derivative containing carboxylic acid and salt functional
groups, and is classified in heading 2917, HTSUS, under GRI 1. Specifically, HPN-68L is classified in subheading 2917.20.00, HTSUS, which provides for: “Polycarboxylic acids, their anhydrides, halides, peroxides and peroxyacids; their halogenated, sulfonated, nitrated or nitrosated derivatives: Cyclanic, cyclenic or cycloterpenic polycarboxylic acids, their anhydrides, halides, peroxides, peroxyacids and their derivatives.”
HOLDING:
Pursuant to GRI 1, Hyperform® HPN-68L is classified in heading 2917, HTSUS. It is provided for in subheading 2917.20.00, HTSUS, which provides for: “Polycarboxylic acids, their anhydrides, halides, peroxides and peroxyacids; their halogenated, sulfonated, nitrated or nitrosated derivatives: Cyclanic, cyclenic or cycloterpenic polycarboxylic acids, their anhydrides, halides, peroxides, peroxyacids and their derivatives.” The applicable column one, general rate of duty under the 2009 HTSUS is 4.2 percent 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 on the world wide web at www.usitc.gov.
This merchandise may be subject to the requirements of the Toxic Substances Control Act (“TSCA”) administered by the U.S. Environmental Protection Agency. You may contact them by mail at U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW, Washington, D.C. 20460-0001, or by telephone at (202) 564-2220.
EFFECT ON OTHER RULINGS:
HQ 968189, dated June 6, 2006, is revoked.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the CUSTOMS BULLETIN.
Sincerely,
Myles B. Harmon, Director Commercial and Trade Facilitation Division