reported in Aceto Chemical Co., Inc. v. United States, 59 Cust. Ct. 15, C.D. 3058, 271 F. Supp. 293 (1967). The court therein held that the merchandise was properly classifiable pursuant to paragraph 13 of the Tariff Act of 1930, as modified, as liquids for cleaning, not specially provided for, and not containing alcohol.

The court rejected the collector's classification pursuant to paragraph 2 of the Tariff Act of 1930, as modified, as a triethanolamine salt which classification was conceded to be erroneous. Plaintiff's alternate claim for classification pursuant to paragraph 61 of said act, as modified, as a preparation used for "applications to the hair** *”, was overruled.

In the original decision the majority was of the opinion that the importation, known as "Empicol TSL" could be used only as a liquid cleaner of some sort and in its imported condition was specifically provided for pursuant to the provisions for "liquids for cleaning" in paragraph 13 of the Tariff Act of 1930, as modified.

Reconsideration of the arguments of the parties and the authorities to which our attention has been directed, persuade us to reach a different conclusion from that set forth in the original decision. The record herein establishes that the importation is a mixture of two chemical compounds known as "triethanolamine lauryl sulfate" and "lauric isopropanolamide". These ingredients are what is commonly known as "detergents". In the imported form they are intended for use as a base in the formulation of hair shampoos, the further steps being dilution and the possible additions of perfume, color and oleyl alcohol for "manageability".

It would seem at first glance that in light of the use of this importation and the ingredients thereof, it would be classifiable either pursuant to paragraph 61 providing for all preparations used as applications to the hair or paragraph 13 providing for liquid cleaning agents. Close study of these provisions and their legislative history reveals, however, that such is not the case.

The Tariff Information Surveys, prepared in 1921 by the United States Tariff Commission for the use of the Committee on Ways and Means of the House of Representatives in the preparation of a new tariff bill, reveal in a discussion of the existing paragraph 11 (the predecessor of paragraph 13 herein) that "to come within paragraph 11, the cream, preparation, or powder must have been prepared or imported for cleaning or polishing in the condition in which it is

imported."1 In addition, it further appears from the study of the legislative history of this provision,2 that Congress intended to provide in paragraph 13 for such cleaners as were used basically for household cleaning and not for personal hygiene. Consequently, the instant importation, not being a completed product and being intended for use as a hair shampoo, is clearly not encompassed by paragraph 13.

As regards paragraph 61, we now note that the Summaries of Tariff Information for 1921 and 1929 indicate that the relevant provision was intended to cover perfumery and cosmetics in finished form. These articles, of course, include washes for the care of the hair.

In light of the unfinished state of the importation, we reach the conclusion that it is not properly classifiable pursuant to paragraph 61 of the Tariff Act of 1930, as modified. In light of the fact that it is not intended for such uses as are contemplated in paragraph 13 of said act, as modified, it is not classifiable therein.

Accordingly, we overrule the protest without affirming the classification of the collector. Due to the failure of plaintiff's claims, said classification, though conceded to be erroneous, prevails. Judgment will issue accordingly.

(C.D. 4067)

CHEMIRAD CORPORATION v. UNITED STATES

Chemicals

CLASSIFICATION-POLYETHYLENEIMINE

The importation, consisting of a polymer dissolved in water is a "single compound" within the meaning of that term in headnote 2(b) of schedule 4 of the TSUS and hence the weight of the water is to be excluded in computing a specific duty.

COMPOUND-INTERNAL ARRANGEMENT

The TSUS requirement, set forth in headnote 2(a) of schedule 4, that a compound have the same internal arrangement, is satisfied, in the case of a polymer, by its being composed of a basic monomer or building block joined to itself repeatedly. The importation is a single chemical compound and the fact that the individual molecules of the polymer are of different lengths and possess different branchings does not support a conclusion that it is a mixture of compounds.

'Survey I A-5 on "Blacking, Cleaning, and Polishing Preparations", page 8. *Summary of Tariff Information 1921, page 52. Summary of Tariff Information 1929, page 91.

* Page 178. 'Page 313.

United States Customs Court, First Division

Protests 67/3581 and 67/3647 against the decision of the collector of customs at the port of New York

[Judgment for plaintiff.]

(Decided August 28, 1970)

John Irwin Dugan for the plaintiff.

William D. Ruckelshaus, Assistant Attorney General (Brian A. Goldstein, trial attorney), for the defendant.

Before WATSON, MALETZ, and RE, Judges

WATSON, Judge: These protests, consolidated for the purpose of trial, place in issue the tariff treatment of importations of "Polymerized Ethylene Imine" (hereinafter called PEI). PEI is used in various manufacturing processes in the paper, textile and rubber industry. The importation is composed of 50 percent PEI and 50 percent water by weight. It was classified pursuant to item 430.00 of the Tariff Schedules of the United States as a mixture of two or more organic compounds. That item calls for the rate of duty of 10.5 per centum ad valorem "but not less than the highest rate applicable to any component compound." Accordingly, the importation was assessed with duty at the rate of 3 cents per pound plus 15 per centum ad valorem as provided for in item 425.52 for "other" nitrogenous compounds.

Plaintiff does not dispute the fact that the importation was classified pursuant to the correct provision as other nitrogenous compounds but claims that the assessment of duty on the entire weight of the importation is in error. Plaintiff contends that PEI is a single compound in water entitled to the treatment set forth in headnote 2(b) of schedule 4.

(b) The term "compounds", as used in this schedule includes a solution of a single compound in water, and, in determining the amount of duty on any such compound subject to duty in this schedule at a specific rate, an allowance in weight or volume, as the case may be, shall be made for the water in excess of any water of crystallization which may have been in the compound.

In accordance with the above, plaintiff contends that the 3 cents per pound duty should be applied only to the actual weight of the PEI comprising 50 percent of the importation. In light of this contention the dispute centers on whether or not the importation is a single compound or mixture of compounds. This draws our attention to the definition of compounds found in headnote 2(a), schedule 4.

2. (a) The term "compounds", as used in this schedule, means substances occurring naturally or produced artifically by the reaction of two or more ingredients, each compound

(i) consisting of two or more elements,

(ii) having its own characteristic properties different from those of its elements and from those of other compounds, and (iii) always consisting of the same elements united in the same proportions by weight with the same internal arrangement.

The court's understanding of the issues herein, has been considerably assisted by the testimony of three witnesses, Dr. Hans Osborg and Dr. Norbert M. Bikales, for the plaintiff and Dr. Clarence R. Dick, for the defendant.

The facts herein are as follows: The importation is a polymer, a large molecule constructed from the "mer" or more properly, "monomer", a single molecule. The monomer is the building block which by a chemical process, is joined to itself repeatedly forming chains of various lengths and possessing various branchings. Each of these long chains is a molecule of the polymer.

The monomer in this case is ethyleneimine which consists of two carbon atoms, a nitrogen atom and five hydrogen atoms and is represented diagrammatically as follows:

The polymer structure is represented as follows with the repetition of the hydrogen atoms eliminated for the sake of clarity.

Regardless of the length of the polymer and the number of branchings it possesses, the building block is the same monomer. The ratio of carbon, nitrogen and hydrogen, is always the same by weight.

With this understanding of the importation, we can turn to the definition of compounds, supra, and analyse it point by point. First, it is plain that the importation is a substance produced artifically by the reaction of two or more ingredients. Second, it is clear that it is composed of two or more elements. Third, it is established that its characteristic properties are different from those of its constituent element and other compounds.

We find that the issue has been reduced to whether or not this substance has the "same internal arrangement." If by this statutory language is meant, uniformity in the length of the chains and branchings, in sum, physical uniformity, the PEI is not a compound within the meaning of the tariff schedules. We are of the opinion, however, that it is chemical uniformity which the statute speaks of and that in this instance it is the repetition of the monomer which is the key to the internal arrangement and which provides the polymer with the "sameness" required by the statutory definition of a compound. We are brought to this conclusion by our evaluation of the testimony of the witnesses and our study of the authorities. We find that this view of internal arrangement is in accordance with chemical usage and commercial realities. We reach the opinion that despite variations in the length of its chains and its branchings the polymer in question is essentially a single compound within the meaning of the statutory language. In our opinion the record establishes that PEI is manufactured and used as a single compound and functions chemically as such.

In order for defendant to successfully defend the classification against the thrust of plaintiff's proof and the prima facie case it supports, it would have been necessary for it to prove that the individual chains of the polymer possess distinct individual chemical properties dependent on the variations in length and branchings, or, in short, that the importation is a mixture within the meaning of the tariff schedules. Headnote 3 (a) and (b) of schedule 4 sets forth clearly the meaning of the term "mixtures" which term is the only logical alternative to plaintiff's claim that the importation is a single compound.

3. (a) The term "mixtures", as used in this schedule, means substances consisting of two or more ingredients (i.e., elements or compounds), whether occurring as such in nature, or whether artificially produced (i.e., brought about by mechanical, physical, or chemical means), which do not bear a fixed ratio to one another and which, however thoroughly commingled, retain their individual chemical properties and are not chemically united. The fact that the ingredients of a product are incapable of separation or have been commingled in definite proportions does not in itself affect the classification of such product as a mixture.