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HQ 964659




August 7, 2002

CLA-2 RR:CR:GC 964659AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 3812.30.60

Lindsay B. Meyer
Venable, Baetjer, Howard & Civiletti, LLP 1201 New York Ave. N. W., Ste. 1000
Washington, DC 20005-2917

RE: New York ruling letter F83940; Wingstay® L and Wingstay® L-HLS

Dear Ms. Meyer:

This is our decision regarding your letter, on behalf of the Goodyear Tire & Rubber Company, dated November 7, 2000, requesting reconsideration of New York Ruling Letter (NY) F83940, dated August 25, 2000, regarding the tariff classification, pursuant to the Harmonized Tariff Schedule of the United States (HTSUS), of Wingstay® L and Wingstay® Wingstay® L-HLS.

FACTS:

The merchandise, Wingstay® L and Wingstay® L-HLS are chemically identical antioxidants for foam and rubber products available in flake and powder form. The merchandise is the butylated reaction products of p-cresol and diclopentadiene with an average molecular weight of 600-700. It is further described in the National Surveyor (2000 edition) as “compounds of unknown structure.” The merchandise is used in the manufacture of items such as: foam rubber, carpet backing, pressure sentitive and hot melt adhesives, latex, ABS compounds, rubber thread, sidewalls, and light-colored rubber products. The CAS number is 69610-51-5 and is not listed in the Chemical Appendix to the HTSUS.

Customs laboratory report 2-2000-30103, dated August, 1, 2000, states, in pertinent part, "the samples, tan flakes and an off white powder, are preparations of antioxidants for rubber and plastics. They are composed of mixtures of aromatic or modified aromatics, other." Customs laboratory report NY20020316, dated March 22, 2002, poses six questions for the importer. You have not responded to a facsimile transmission from the National Import Specialist of these questions on that date or to a letter dated July 24, 2002, from this office. However, the laboratory report states, in pertinent part, "Wingstay L and Wingstay L-HLS contain compounds with 1,2,or N repeating units making Wingstay L and Wingstay L-HLS mixtures, and not a single chemically defined compound."

Wingstay® L and Wingstay® L-HLS were classified in NY F83940 in subheading 3812.30.60, HTSUS, the provision for “Prepared rubber accelerators; compound plasticizers for rubber or plastics, not elsewhere specified or included; antioxidizing preparations and other compound stabilizers for rubber or plastics: Containing any aromatic or modified aromatic antioxidant or other stabilizer: Antioxidizing preparations and other compound stabilizers for rubber or plastics: Other.”

You claim that the goods are classified in subheading 2907.29.00, HTSUS, the provision for "[P]henols; phenol-alcohols: [O]ther: [O]ther. You also submitted information that a foreign customs administration classified the product in heading 3911, HTS, the provision for "[P]etroleum resins, coumarone-indene resins, polyterpenes, polysulfides, polysulfones and other products specified in note 3 to this chapter, not elsewhere specified or included, in primary forms."

ISSUE:

What is the classification of Wingstay® L and Wingstay® L-HLS?

LAW AND ANALYSIS:

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 order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs.

In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The HTSUS headings under consideration are as follows:

2907: Phenols; phenol-alcohols

3812: Prepared rubber accelerators: compound plasticizers for rubber or plastics, not elsewhere specified or included; antioxidizing preparations and other compound stabilizers for rubber or plastics

3911: Petroleum resins, coumarone-indene resins, polyterpenes, polysulfides, polysulfones and other products specified in note 3 to this chapter, not elsewhere specified or included, in primary forms:

Chapter 29, note 1(a), HTSUS, states that “. . . the headings of this chapter apply only to: [S]eparate chemically defined organic compounds . . . .” The ENs to the chapter note state, in pertinent part, “A separate chemically defined compound is a substance which consists of one moleculare 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.”

Chapter 39, note 3, HTSUS, states, in pertinent part, "[H]eadings 3901 to 39112 apply only to goods of a kind produced by chemical synthesis, falling in the following categories: . . .(c) Other synthetic polymers with an average of at least five monomer units; . . . ."

The instant merchandise is a polymer consisting of a mixture of various oligomers. An oligomer is a polymer molecule consisting of only a few monomer units-dimer, trimer, tetramer. Hawley’s Condensed Chemical Dictionary, Fourteenth Edition. It can not therefore be classified in Chapter 29 as a separate chemically defined compound. Although chemically belonging to the class of phenols, the phenols classified in heading 2907, such as Bisphenol A, are all separate chemically defined organic compounds.

Furthermore, the instant merchandise, a polymer consisting of a mixture of oligomers, does not, by definition, have an average of at least five monomer units. It therefore can not be classified in heading 3911 under chapter note 3 (c).

With regard to the information about how a foreign customs administrtion viewed this product, foreign classification determinations, such as the one you submitted, are merely instructive of how others may classify like goods. Customs is not bound to abide by the determination of foreign customs services, especially where, as here, no rationale is provided for the finding. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

Rather, the instant merchandise is completely described by heading 3812, HTSUS, as an “antioxidizing preparation . . . for rubber or plastics” using GRI 1. GRI 3 is inapplicable. There is no other provision with which to compare the specificity of description.

HOLDING:

Wingstay® L and Wingstay® L-HLS are classified in subheading 3812.30.60, HTSUS, the provision for “Prepared rubber accelerators; compound plasticizers for rubber or plastics, not elsewhere specified or included; antioxidizing preparations and other compound stabilizers for rubber or plastics: Containing any aromatic or modified aromatic antioxidant or other stabilizer: Antioxidizing preparations and other compound stabilizers for rubber or plastics: Other.”

NY F83940 is affirmed.

Sincerely,

Myles B. Harmon, Acting Director

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