H299275

H299275 December 27, 2023 OT:RR:CTF:CPMMA H299275 KSG CATEGORY: Classification TARIFF NO: 3902.90.00 Port Director U.S. Customs and Border Protection Port of Chicago 5600 Pearl Street Rosemont, IL 60018 Attn: Supervisory Import Specialist (SIS) Miguel Plaza Re: Application for Further Review of Protest No. 3901-18-100410; Classification of Styrene-Isoprene Block Copolymer Dear Port Director, This is in reply to the Application for Further Review (AFR) of Protest No. 390118- 100410, dated April 9, 2018, on behalf of Kuraray America, Inc. (Protestant), contesting U.S. Customs and Border Protection’s (CBP) classification and liquidation of an entry of styrene-isoprene block copolymer identified as “Septon 1020” in heading 3902, Harmonized Tariff Schedule of the United States (HTSUS). FACTS: 2 The subject entry was made on November 29, 2016. The merchandise was entered under heading 3902, HTSUS, specifically subheading 3902.90.00, as polymers of propylene or of other olefins. The subject entry was liquidated on October 17, 2017, in heading 3902, HTSUS, specifically in subheading 3902.90, HTSUS, as polymers of propylene or of other olefins. Via the AFR, Protestant contends that CBP’s Laboratories and Scientific Services Directorate (LSSD) failed to perform proper testing of the product and that Septon 1020 should be appropriately classified under heading 4002, HTSUS, specifically subheading 4002.99.00, HTSUS, as synthetic rubber and factice derived from oils. Two CBP laboratory tests were conducted on Synthetic rubber SEPTON 1020 by the CBP Laboratory and Scientific Services Division (LSSD) on October 28, 2015, and on August 24, 2016. In both reports the LSSD concluded that the SEPTON did not meet the requirements of HTSUS Chapter 40, Note 4 (a) as an unsaturated synthetic substance. CBP agreed to a third test of the Septon 1020 on May 10, 2023. On June 28, 2023, CBP attorneys from the Regulations and Rulings Directorate (RR), Office of Trade, had a video conference with the Protestant (counsel and scientists) and CBP LSSD scientists to discuss the sampling and testing requirements for the Septon 1020. The parties agreed on the tests and methodologies to be used to analyze the agreed upon samples. The samples were received by CBP on October 10, 2023. RR received the LSSD test report on December 21, 2023. The test results are set forth and discussed below. ISSUE: Whether the instant merchandise is properly classified as polymers of propylene or of other olefins of heading 3902, HTSUS, or synthetic rubber and factice derived from oils of heading 4002, HTSUS. LAW AND ANALYSIS: The matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the entry.? (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 Protest No. 3901-18-100410 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. 3 Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs).? GRI 1 provides that classification shall be determined according to the terms of the headings 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 or notes do not require otherwise, the remaining GRIs 2 through 6 may be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). The HTSUS provisions under consideration are as follows: 3902: Polymers of propylene or of other olefins, in primary forms: 3902.90.00: Other: 4002: Synthetic rubber and factice derived from oils, in primary forms or in plates, sheets or strip; mixtures of any product of heading 4001 with any product of this heading, in primary forms or in plates, sheets or strip: Styrene-butadiene rubber (SBR); carboxylated Styrene-butadiene rubber (XSBR) 4002.99.00 Other: Note 2 to Chapter 39 states, in pertinent part: This chapter does not cover: (l) Synthetic rubber, as defined for the purposes of chapter 40, or articles thereof; The EN to Chapter 39 elaborates: Polyisobutylene when sufficiently polymerized resembles rubber but is not classified in Chapter 40 as it does not conform to the definition of synthetic rubber. It is used for waterproof coatings and for modifying other plastics. Note 4 to Chapter 40 states, in pertinent part: 4 In note 1 to this chapter and in heading 4002, the expression "synthetic rubber" applies to: (a). 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 crosslinking, such as extenders, plasticizers and fillers, is not permitted; EN 40.02 provides, in pertinent part: This Note is in three parts. Whereas substances of Part (a) and (c) must comply with the vulcanization, elongation and recovery criteria mentioned in Part (a), thioplasts of Part (b) are exempt from these requirements. It should be noted that the definition of synthetic rubber applies not only to heading 40.02 but also to Note 1. Consequently, wherever the term rubber is used in the Nomenclature, it includes synthetic rubber as defined in Note 4. (a) Unsaturated synthetic substances, which meet the requirements concerning vulcanisation, elongation and recovery as laid down in Part (a) of the Note. For the purposes of the test, substances necessary for the cross- linking, such as vulcanising activators, accelerators or retarders may be added. The presence of small amounts of breakdown products of emulsifiers (Note 5 (B) (ii)) and very small amounts of the special purpose additives mentioned in Note 5 (B) (iii) is also permitted. However, the presence of any substances not necessary for the cross-linking, such as pigments (other than those added solely for the purpose of identification), plasticisers, extenders, fillers, reinforcing agents, organic solvents is not permitted. Thus, the presence of mineral oil or dioctyl phthalate is not permitted for the purpose of the test. This heading excludes: (a) Elastomers which do not comply with the conditions laid down in Note 4 to this Chapter (generally Chapter 39). 5 Protestant contends that the test performed by LSSD on its dumbells contains critical errors and faulty analysis. Protestant cites to its own testing of similar samples to assert that the CBP lab did not properly analyze the data to detect whether or not the sample was unsaturated and that it cannot be irreversibly transformed by vulcanization with sulfur. The results of the LSSD testing contained in the report, dated December 21, 2023, are as follows: The Septon, Septon-DB, and Septon-XLwS samples were soluble in Chloroform at room temperature. Septon was soluble Toluene at both 40C and 70C. 

The matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the entry.? (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 Protest No. 3901-18-100410 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. 3 

 Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs).? GRI 1 provides that classification shall be determined according to the terms of the headings 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 or notes do not require otherwise, the remaining GRIs 2 through 6 may be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). The HTSUS provisions under consideration are as follows: 3902: Polymers of propylene or of other olefins, in primary forms: 3902.90.00: Other: 4002: Synthetic rubber and factice derived from oils, in primary forms or in plates, sheets or strip; mixtures of any product of heading 4001 with any product of this heading, in primary forms or in plates, sheets or strip: Styrene-butadiene rubber (SBR); carboxylated Styrene-butadiene rubber (XSBR) 4002.99.00 Other: Note 2 to Chapter 39 states, in pertin