Cla-2-39:Ot:Rr:Ctf:Tcm H055375 Pjg

HQ H055375

September 22, 2010

CLA-2-39:OT:RR:CTF:TCM H055375 PJG

CATEGORY: Classification

TARIFF NO.: 3908.90.70

Port Director United States Customs and Border Protection 200 East Bay Street Charleston, South Carolina 29401

RE: Internal Advice Request No. 09/005; Classification of Cartarex 2L Liquid

Dear Port Director:

This ruling is in response to Clariant’s request for Internal Advice, No. 09/005, dated August 25, 2008. In its request for internal advice, Clariant proposes classifying the Cartarex 2L Liquid under heading 3908, Harmonized Tariff Schedule of the United States (“HTSUS”) rather than under heading 3907, HTSUS.

FACTS:

The merchandise at issue is identified as “Cartarex 2L Liquid.” In its request for Internal Advice, Clariant describes its product as “a highly effective, fast working quenching agent for the fluorescent whitening agents used in the paper industry.” On its website, Clariant describes the Cartarex 2L Liquid as an “optical brightener quenching agent[], used to quench fluorescence in water circulation systems, stock preparation equipment, recycled fiber, broke and de- inked pulp.”

Clariant provides the following information regarding the chemical makeup of the Cartarex 2L Liquid:

7732-18-5 Towns water – Raw material (PSFT) 24% 25322-68-3 Poly(oxy-1,2-ethanedyl), a-hydro-w-hydroxy-(9Cl) 23.5% 68187-22-4 1, 4-Benzenedicarboxylic acid, polymer with N, N’-bis(2-aminoethyl)-1,2-ethanediamine, cyclized, Me sulfates 52.5%

The CAS-7732-18-5 registry for “Towns water – Raw material (PSFT)” shows common name “water.” The chemical formula is H20.

The CAS-25322-68-3 registry for “Poly(oxy-1,2-ethanedyl), a-hydro-w- hydroxy-(9Cl)” shows chemical name “polyethylene glycol.” The chemical formula is (C2H40)H20 and the chemical structure is –HO---[--CH2-CH2---O---]--- H with bracketed portion repeating (n=5 or more times).

The CAS-68187-22-4 registry for “1, 4-Benzenedicarboxylic acid, polymer with N,N’-bis(2-aminoethyl)-1,2-ethanediamine, cyclized, Me sulfates” shows chemical category “polyamide.” The chemical formula and chemical structure (complex) are not provided.

ISSUE:

Is the Cartarex 2L Liquid classified under heading 3907, HTSUS, as “other polyesters”, or under heading 3908, HTSUS, as “other polyamides”?

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (“GRIs”). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, 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 GRIs 2 through 6 may then be applied in order.

In addition, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”), while not binding law, are the “official interpretation” of the Harmonized System at the international level and “provide a commentary on the scope of each heading” of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989); see also, Len-Ron Mfg. Co. v. United States, 334 F.3d 1304, 1309 (Fed. Cir. 2003) (noting that Explanatory Notes are “intended to clarify the scope of HTSUS subheadings and to offer guidance in their interpretation”). The 2010 HTSUS provisions under consideration for classification of the Cartarex 2L Liquid are:

3907 Polyacetals, other polyethers and epoxide resins, in primary forms; polycarbonates, alkyd resins, polyallyl esters and other polyesters, in primary forms: Other polyesters:

2 3907.99.1 Other

* * * * *

3908 Polyamides in primary forms:

3908.90 Other:

3908.90.70 Other

Note 4 to Chapter 39 provides in relevant part that “copolymers . . . and polymer blends are to be classified in the heading covering polymers of that comonomer unit which predominates by weight over every other single comonomer unit. For the purposes of this note, constituent comonomer units of polymers falling in the same heading shall be taken together.”

Chapter 39 Subheading Note 1(a)(4) states that if Subheading Notes 1(a) (1)-(3) are not satisfied, the polymer must be “classified in the subheading . . . covering polymers of that monomer unit which predominates by weight over every other single comonomer unit.”

The comonomer unit polyethylene glycol, classified in heading 3907, HTSUS, as a polyester, accounts for approximately 24% of the instant substance. Approximately 52% of the substance consists of the comonomer unit polyamide, classified in heading 3908, HTSUS. Therefore, according to Chapter 39 Note (4) the subject merchandise must be classified under heading 3908, the heading in which we would classify the comonomer unit that predominates by weight over every other single comonomer unit. The subheading covering the polyamide comonomer units is subheading 3908.90.70, HTSUS, which provides for “Polyamides in primary forms: Other: Other.”

HOLDING:

Cartarex 2L Liquid is classified under heading 3908, HTSUS. It is specifically provided for in subheading 3908.90.70, HTSUS, which provides for “Polyamides in primary forms: Other: Other.”

3 You are to mail this decision to the internal advice requester no later than sixty days from the date of the decision. At that time, 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