CLA-2 RR:CTF:TCM 968018 BtB
Mr. Mitchell J. Tracy
Market Actives, LLC
8300 SW 71st Avenue
Portland, OR 97223
Re: Reconsideration of NY L85332; classification of “Bitrex, 25% in Propylene Glycol”
Dear Mr. Tracy:
This is in reply to your letter dated July 25, 2005 to the National Commodity Specialist Division (“NCSD”) requesting reconsideration of New York Ruling Letter (NY) L85332, dated June 24, 2005, on the classification of a product identified as “Bitrex, 25% in Propylene Glycol.” You supplemented your request with another letter dated December 12, 2005. Pursuant to your reconsideration request, we have reviewed NY L85332. This ruling, HQ 968018, affirms the holding in NY L85332.
FACTS:
In NY L85332, U.S. Customs and Border Protection (“CBP”) classified a solution composed of 25% bitrex (C.A.S. number 3734-33-6) and 75% propylene glycol (C.A.S. number 57-55-6) in subheading 3824.90.9190, Harmonized Tariff Schedule of the United States Annotated (“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.”
In your July 25, 2005 letter, you assert that the solution at issue is classified in subheading 2924.29.7100, HTSUSA, which provides for: “Carboxyamide-function compounds; amide-function compounds of carbonic acid: Cyclic amides (including cyclic carbamates) and their derivatives; salts thereof: Other: Aromatic: Other: Other: Other: Products described in additional U.S. note 3 to section VI.” Your assertion is addressed below.
ISSUE:
What is the classification of “Bitrex, 25% in Propylene Glycol?”
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).
You assert that the product at issue is classifiable in subheading 2924.29.7100, HTSUSA. However, before any consideration of subheadings, it is necessary to determine a single correct heading for the merchandise at issue. See Orlando Food Corp. v. United States, 140 F.3d 1437 (Fed. Cir. 1998). The HTSUSA headings under consideration for classification of the instant solution are: Heading 2924, which provides for: “Carboxyamide-function compounds; amide-function compounds of carbonic acid” and Heading 3824, 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; residual products of the chemical or allied industries, not elsewhere specified or included.”
As its U.S. distributor, you are aware that “Bitrex” is the brand name for denatonium benzoate, the bitterest compound known. See www.bitrex.com. Bitrex is an aromatic, cyclic amide indicated for use as a denaturant and bittering agent. See generally NY J82291, dated March 27, 2003, addressed to you. The EN to heading 2924 specifically states that the heading includes cyclic amides. CBP has classified Bitrex in heading 2924, HTSUSA. Id. However, the solution at issue contains only 25% Bitrex. The remaining 75% is propylene glycol, also a chemical compound.
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. “Bitrex, 25% in Propylene Glycol,” however, is not a separate chemically defined organic compound, but a solution; that is, a homogenous mixture with Bitrex serving as the solute and the propylene glycol serving as the solvent.
Note 1 to Chapter 29, HTSUSA, however, does offer certain allowances in regard to the general rule above. Note 1(e) to Chapter 29, HTSUSA, allows for chemical compounds “dissolved in other solvents provided that the solution constitutes a normal and necessary method of putting up these products adopted solely for reasons of safety or for transport and that the solvent does not render the product particularly suitable for specific use rather than for general use.” Note 1(g) to Chapter 29, HTSUSA, allows for chemical compounds that contain an anti-dusting agent for safety reasons, provided that the additions do not render the product particularly suitable for specific use rather than for general use.
In your July 25, 2005 letter, you claim that propylene glycol has only been added to the instant product “… as an anti-dusting agent for safety reasons as allowed in Chapter 29 (e) and (g) notes.” You assert that, as a consequence, the headings of Chapter 29 apply to the product at issue.
We do not agree that the allowances set forth in Note 1(e) or Note 1(g) bring the product at issue within the scope of products covered by the headings of Chapter 29. In regard to Note 1(e), the dissolving of Bitrex in a solvent is not necessary to put up or sell the product. This is evidenced by the fact that you distribute Bitrex in anhydrous form in granules and powder. In regard to Note 1(g), we do not regard the propylene glycol in the product to be a mere anti-dusting agent used for safety reasons. Market Actives, LLC’s website (www.marketactives.com) states the following regarding the Bitrex solutions that it distributes:
Bitrex is stable, inert and easily added to most products. For ease of handling, many manufacturers use our standard Bitrex solutions of Propylene Glycol, Ethylene Glycol or Ethanol. This reduces mixing time and bitter taste exposures.
Propylene glycol serves as more than an anti-dusting agent in the product at issue. The compound composes 75% of the solution. Propylene glycol was specifically chosen to be part of the solution, not because it is an effective anti-dusting agent, but because of its compatibility with and authorized use in pharmaceutical preparations, cosmetics, toiletries, perfumes, etc. As mentioned on the above website, this compatibility reduces mixing time. If the propylene glycol merely served as a dusting-agent that was suitable for general use, there would be no need for the two other varieties of solution (Bitrex with ethylene glycol or ethanol) that Market Actives, LLC distributes. The two other varieties of Bitrex solutions are distributed because these solutions are compatible with other specific products that the solution at issue is not. Additionally, while Bitrex mixed with propylene glycol may reduce bitter taste exposures, it is our understanding that Bitrex is a product that is designed for human exposure and is not harmful. While bitter taste exposures may be unpleasant, they are not a safety concern. As a result, we do not consider the Bitrex to be mixed with the propylene glycol for “safety reasons.”
As, pursuant to Note 1 to Chapter 29, HTSUSA, the product at issue does not fall within the scope of merchandise covered by the headings of Chapter 29, HTSUSA, the product at issue cannot be classified in heading 2924, HTSUSA. The product is, however, classifiable in heading 3824, HTSUSA, as a chemical product not elsewhere specified or included. In regard to the part of heading 3824 providing for chemical products not elsewhere specified or included, the EN to heading 3824 states, in relevant part, that:
The chemical or other preparations are either mixtures … or occasionally solutions. Aqueous solutions of the chemical products of Chapter 28 or 29 remain classified within those Chapters, but solutions of these products in solvents other than water are, apart from a few exceptions, excluded therefrom and accordingly fall to be treated as preparations of this heading.”
The product at issue is a solution, with propylene glycol serving as the solvent. Pursuant to the terms of the heading and guidance from the EN, the product falls squarely within the scope of heading 3824, and accordingly is classified in that heading.
HOLDING:
By application of GRI 1, “Bitrex, 25% in Propylene Glycol” is classified in heading 3824, HTSUSA. It is provided for 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 duty rate 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.
EFFECT ON OTHER RULINGS:
NY L85332, dated June 24, 2005, is affirmed.
Sincerely,
Myles B. Harmon, Director
Commercial Trade and Facilitation Division