H311149

 H311149 March 22, 2021 OT:RR:CTF:CPMMA H311149 MMM CATEGORY: Classification TARIFF NO.: 3907.20.0000 Re: Application for Further Review of Protest Number 3901-20-110046; tariff classification of PTMEG 2000 Dear Port Director, This is in reply to the Application for Further Review (AFR) of Protest No. 3901-20- 110046, dated April 9, 2020 , on behalf of Gantrade Corp. (“Protestant”), contesting U.S. Customs and Border Protection’s (“CBP”) classification and liquidation of entry of PTMEG 2000 in heading 3907, Harmonized Tariff Schedule of the United States (HTSUS), as “polyacetals, other polyethers and epoxide resins, in primary forms; polycarbonates, alkyd resins, polyallyl esters and other polyesters, in primary forms.” The subject merchandise was entered in ten entries between September 5 and 11, 2018, in heading 3404, HTSUS, which provides for, in relevant part, “artificial waxes and prepared waxes.” The entry was liquidated on October 18, 2019. The subject merchandise was liquidated in heading 3907, HTSUS, as “polyacetals, other polyethers and epoxide resins, in primary forms; polycarbonates, alkyd resins, polyallyl esters and other polyesters, in primary forms.” Protestant claims classification in heading 3404, HTSUS. FACTS: The subject merchandise is a waxy, white solid that melts to a clear, colorless, viscous liquid. It is a linear, polymeric, primary diol, with an average of 27 repeating monomer units. Customs laboratory report # NYN20190338 concluded the Drop Melting Point of the tested subject merchandise to be 31.7 ? C (below 40 ? C). Protestant tested the subject merchandise through an independent laboratory, which concluded the Drop Melting Point to be above 40 ? C. ISSUE: Whether Customs should rely on its laboratory determination that the subject PTMEG 2000 has a Drop Melting Point below 40 ? C. LAW AND ANALYSIS: Initially, we note that the matter 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 for entries made on or after December 18, 2004. See 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 Number 1703-19-100629 is properly accorded pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve a question of law or fact that has not previously been ruled upon by CBP or the courts. The classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined 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. The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System (HS) at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HS and are thus useful in ascertaining the proper classification of merchandise. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989). In this case, the 2018 HTSUS headings under consideration are as follows: 3404 Artificial waxes and prepared waxes: 3907 Polyacetals, other polyethers and epoxide resins, in primary forms; polycarbonates, alkyd resins, polyallyl esters and other polyesters, in primary forms * * * * Note 5 to Chapter 34 provides: In heading 3404, subject to the exclusions provided below, the expression "artificial waxes and prepared waxes" applies only to: Chemically produced organic products of a waxy character, whether or not water-soluble; Products obtained by mixing different waxes; Products of a waxy character with a basis of one or more waxes and containing fats, resins, mineral substances or other materials. Note 3 to Chapter 39 provides: Headings 3901 to 3911 apply only to goods of a kind produced by chemical synthesis, falling in the following categories: Liquid synthetic polyolefins of which less than 60 percent by volume distills at 300°C, after conversion to 1,013 millibars when a reduced-pressure distillation method is used (headings 3901 and 3902); Resins, not highly polymerized, of the coumarone-indene type (heading 3911); Other synthetic polymers with an average of at least five monomer units; Silicones (heading 3910); Resols (heading 3909) and other prepolymers. Note 6 to Chapter 39 provides: In headings 3901 to 3914, the expression "primary forms" applies only to the following forms: Liquids and pastes, including dispersions (emulsions and suspensions) and solutions; Blocks of irregular shape, lumps, powders (including molding powders), granules, flakes and similar bulk forms. ENs to Heading 3404 provides: This heading covers artificial waxes (sometimes known in industry as “syntheticwaxes”) and prepared waxes, as defined in Note 5 to this Chapter, which consist of or contain relatively high molecular weight organic substances and which are not separate chemically defined compounds. These waxes are : Chemically produced organic products of a waxy character, whether or not water-soluble. Waxes of heading 27.12, produced synthetically or otherwise (e.g., Fischer-Tropsch waxes consisting essentially of hydrocarbons) are, however, excluded. Water-soluble waxy products having surface-active properties are also excluded (heading 34.02). Products obtained by mixing two or more different animal waxes, different vegetable waxes or different waxes of other classes or by mixing waxes of different classes (animal, vegetable or other) (for example, mixtures of different vegetable waxes and mixtures of a mineral wax with a vegetable wax). Mixtures of mineral waxes are, however, excluded (heading 27.12). Products of a waxy character with a basis of one or more waxes and containing fats, resins, mineral substances or other materials. Unmixed animal or vegetable waxes, whether or not refined or coloured, are, however, excluded (heading 15.21). Unmixed mineral waxes or mixtures of mineral waxes, whether or not coloured, are also excluded (heading 27.12). The products described in (A), (B) and (C) above, when mixed with, dispersed (suspended or emulsified) in or dissolved in a liquid medium, are however excluded from this heading (headings 34.05, 38.09, etc.). The waxes of paragraphs (A) and (C) above must have: a dropping point above 40 °C; and a viscosity, when measured by rotational viscometry, not exceeding 10 Pa.s (or 10,000 cP) at a temperature of 10 °C above their dropping point * * * * In order to be classified as an artificial wax under heading 3404, merchandise must have a dropping point above 40 ? C. The CBP lab tested the subject merchandise and found the subject merchandise in this case was below 40 ? C and therefore did not meet the dropping point criterion in the ENs to 3404. The Protestant argues that the testing method used by CBP was incorrect. CBP enjoys a statutory presumption of correctness with regard to factual disputes.1 Thus, “an importer has the burden to prove by a preponderance of the evidence that a Customs’ decision” was incorrect.2 A preponderance of the evidence has been defined in civil cases to mean “the greater weight of evidence, evidence which is more convincing than the evidence which is offered in opposition to it.”3 The courts have long held that “the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct.”4 However, “[i]f a prima facie case is made out, the presumption is destroyed, and the Government has the burden of going forward with the evidence.”5 Furthermore, in HQ 955711, dated July 21, 1994, CBP held that “where there is a

Initially, we note that the matter 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 for entries made on or after December 18, 2004. See 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 Number 1703-19-100629 is properly accorded pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve a question of law or fact that has not previously been ruled upon by CBP or the courts.The classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined 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.The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System (HS) at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HS and are thus useful in ascertaining the proper classification of merchandise. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).In this case, the 2018 HTSUS headings under consideration are as follows:3404 Artificial waxes and prepared waxes:3907 Polyacetals, other polyethers and epoxide resins, in primary forms; polycarbonates, alkyd resins, polyallyl esters and other polyesters, in primary forms* * * * Note 5 to Chapter 34 provides:In heading 3404, subject to the exclusions provided below, the expression "artificial waxes and prepared waxes" applies only to:Chemically produced organic products of a