June 6, 2006
CLA-2 RR:CTF:TCM 968189 BtB
TARIFF NO.: 3824.90.9190
Mr. John D. Bruhnke Miliken Chemical 920 Miliken Road M-209 Spartanburg, SC 29304
Re: Classification of Hyperform® HPN-68L; CAS Number 351870-33-2
Dear Mr. Bruhnke:
This is in reply to your binding ruling request sent electronically by eRuling template to the National Commodity Specialist Division ("NCSD") of U.S. Customs and Border Protection ("CBP") on January 17, 2006, requesting the classification under the Harmonized Tariff Schedule of the United States Annotated ("HTSUSA") of a certain product that you identified as "Hyper form® HPN-68L." You supplemented the ruling request with a letter dated March 31, 2006. These letters have been forwarded to this office for a reply. FACTS:
Hyper form® HPN-68L (hereinafter "Hyperform® HPN-68L") is a nucleating additive for polyolefin polymers. It is composed of Bicylco[2.2.1]heptane-2,3-dicarboxylic acid, disodium salt, (1R, 2R, 3S, 4S)-rel-and a blend of amorphous silicon dioxide and (Z)-13-docosenamide.
You identified the amorphous silicon dioxide and (Z)-13-docosenamide blend in Hyperform® HPN-68L as SYLOBLOC® 250, a product distributed by Grace Davison. You also provided us with a copy a Grace Davison webpage describing the product. See generally http://www.gracedavison.com/products/plastics/property.htm . SYLOBLOC® 250 is an amorphous silicon dioxide coated with 13-docosenamide in a 1:1 ratio. See http://www.gracedavison.com/products/plastics/product.htm . We note that 13-docosenamide is also recognized as Erucamide (CAS Number 112-84-5).
A leading website on specialty chemicals states the following about SYLOBLOC® 250:
[A] [b]lend of synthetic amorphous silica and erucamide. Used as an anti-blocking aid in plastic film applications such as polyethylene and polypropylene, as an adsorbent and a pigment dispersion aid and as a mold release agent for injection molded parts. Offers large internal surface area, high porosity, superior dispersibility, high efficiency and clarity. Provides plateout protection in PVC formulations. Gives slip performance, high homogeneity and compatibility with UV stabilizers, anti-oxidants, acid scavengers. See http://www.specialchem4polymers.com .
You stated in your ruling request SYLOBLOC® 250 constitutes 20% of Hyperform® HPN-68L. It is our understanding that Hyperform® HPN-68L is in powder form. In your ruling request, you identify the Hyperform® HPN-68L’s CAS Number as 351870-33-2. You did not indicate the product’s country of origin. You provided us with a sample of Hyperform® HPN-68L, which was tested by CBP’s New York Laboratory.
Also, you propose that Hyperform® HPN-68L is classified as separate chemically defined compound in subheading 2917.20.0000, HTSUSA, 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."
What is the classification of Hyperform® HPN-68L?
LAW AND ANALYSIS:
Classification under the HTSUSA 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 Harmonized Commodity Description and Coding System Explanatory Notes ("EN") constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
A product's classification is determined by first looking to the headings and section or chapter notes. See Orlando Food Corp. v. United States, 140 F.3d 1437 (Fed. Cir. 1998). Only after determining that a product is classifiable under the heading should one look to the subheadings to find the correct classification for the merchandise. Id.
You have proposed that Hyperform® HPN-68L is classified in heading 2917, HTSUSA, which provides for: "Polycarboxylic acids, their anhydrides, halides, peroxides and peroxyacids; their halogenated, sulfonated, nitrated or nitrosated derivatives." As a general rule, subject to the provisions of Note 1 to the Chapter, the headings of Chapter 29 are restricted to separate chemically defined organic compounds. See Note 1 to Chapter 29, HTSUSA, and General EN to Chapter 29. Pursuant to Note 1(f) of the Chapter, these separate chemically defined compounds may contain an added stabilizer (including an anticaking agent) necessary for their preservation or transport. The General EN (A) to Chapter 29, in pertinent part, state that:
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….
Separate chemically defined compounds containing other substances deliberately added during or after their manufacture (including purification) are excluded from this Chapter….
The 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. In this case, the SYLOBLOC® 250 in the Hyperform® HPN-68L that is of specific concern. 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.
Before this analysis can proceed further, it is necessary to set forth definitions relevant to this analysis. "Anti-caking agent" is defined in Hawley’s Condensed Chemical Dictionary (14th Edition) as:
An additive used primarily in certain finely divided food particles that tend to be hygroscopic to prevent or inhibit agglomeration and thus maintain a free-flowing condition.
Much different from anti-caking agents are anti-blocking agents and anti-slip agents. "Antiblocking agent" is defined as:
A substance (e.g., a finely divided solid of mineral nature) that is added to a plastic mix to prevent adhesion of the surfaces of films made from the plastic to each other or to other surfaces. They are of particular value in polyolefin and vinyl films. The hard, infusible particles tend to roughen the surface and so maintain a small air space between the adjacent layers of the film, thus preventing adhesion. Silicate minerals are widely used for this purpose. Id.
"Anti-slip agent" is defined as an additive that decreases the slip of surfaces used to eliminate the sliding of parallel film surfaces over each other or the sliding of film surfaces over substrates.
Silicon dioxide/13-docosenamide blends are generally used in the polymer industry as antiblocking/anti-slip agents. As reflected on Grace Davison’s webpage, SYLOBLOC® products can be used for several purposes, specifically as antiblocking agents, plateout protection, mold releasers, pigment dispersers, and liquid carriers. SYLOBLOC® products can also be tailor-made for individual uses, and are manufactured in many grades and combinations with other components. In your supplemental letter, you assert that although SYLOBLOC® 250 can be used as an antiblocking/anti-slip agent, that is not the additive’s intended purpose in the Hyperform® HPN-68L. You claim that the blend is added to Hyperform® HPN-68L "to prevent moisture from affecting the product, and to help prevent agglomeration, or clumps, which can cause the product to cake together and not flow into or out of a shipping container."
Based on product information, your letters, and our lab testing of the additive, 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 consistent with how silicon dioxide/13-docosenamide blends of this nature are generally used in the polymer industry. The presence of SYLOBLOC® 250 in Hyperform® HPN-68L will result in end products made with Hyperform® HPN-68L having a micro-rough surface, resulting in less contact and less blocking and slip between surfaces. If the blend were not an intentional and functional addition to Hyperform® HPN-68L, this formulated, specialized additive could be replaced by a simple (and most likely less expensive) anticaking agent, which would absorb excess moisture and prevent agglomeration. The high content (20%) of SYLOBLOC® 250 in Hyperform® HPN-68L is also not consistent with a substance only functioning as an anticaking agent.
As a consequence of the above determination, we find that Hyperform® HPN-68L is not a separate chemically defined compound containing only substances allowed under Note 1 to Chapter 29, HTSUSA. The SYLOBLOC® 250 in the product cannot be regarded merely as an anticaking agent (permitted under Note 1(f) to Chapter 29, HTSUSA). Consequently, the headings of Chapter 29 may not be considered for classification of Hyperform® HPN-68L.
Heading 3824, HTSUSA, 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." As Hyperform® HPN-68L is not elsewhere specified or included, it is classified in heading 3824, HTSUSA. The product is provided for by subheading 3824.90.9190, HTSUSA, the basket provision of heading 3824, HTSUSA.
HOLDING: Hyperform® HPN-68L is classified in subheading 3824.90.9190, HTSUSA, 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: Other: Other: Other: Other: Other, Other." The applicable column one, general rate of duty under the 2006 HTSUSA is 5% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA 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 402 M Street, SW, Washington, DC 20460, or by telephone at (202)-554-1404.
Sincerely, Gail A. Hamill, Chief Tariff Classification and Marking Branch