CLA-2 OT:RR:CTF:TCM H249645 ALS

Ms. Birgit Moller
Tax, Customs and Export Control
Heraeus Holding GmbH
Heraeusstrasse 12-14
D-63450 Hanau, Hessen, Germany

RE: Revocation of CBP Ruling NY N244307 (August 16, 2013); Tariff Classification of Wafer Catalysts; Harmonized Tariff Schedule of the United States subheading 7115.90.60

Dear Ms. Moller:

This letter responds to your November 13, 2013 request for reconsideration of Customs and Border Protection (CBP) Ruling NY N244307 (August 16, 2013). The request concerns the legal tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of Wafer Catalysts. Our decision is set forth below.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625 (c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published in the CUSTOMS BULLETIN, Vol. 51, No. 15, on April 12, 2017, proposing to revoke CBP Ruling NY N244307 (August 16, 2013), and revoke any treatment accorded to substantially identical transactions. No comments were received in response to the notice.

FACTS:

The facts as stated in NY N244307 are as follows: The instant product consists of a fiber alloy of precious metals sintered onto a gauze wafer. The fibers are attached to the wafer using a patented sintering process. The metal alloys which make up the active catalytic portion are in pertinent part, a platinum-rhodium complex. Various combinations of Rhodium, Platinum and Palladium are indicated as potential formulations. The wafers are imported as single layers, and are combined after importation, in various thicknesses, based on customer needs. The individual wafers are approximately 1 meter square and in a circular shape. The thickness of the wafers are approximately between 0.5 and 3 mm. Information provided by you in a follow up letter indicate that the wafers are used in the production of Nitric Acid.

In your request for reconsideration, you state that the Wafer Catalysts are “platinum-rhodium non-woven no-grill fabric plate[s]” and they “[consist] of Platinum metal group alloy fibers, sintered together.” You further state that the Wafer Catalysts are intermediate products, with the finished product, “tailor-made ready-to-use catalyst gauze,” being made in the United States. The imported product has no substrate, only platinum fibers that are sintered and non-woven.

You request reconsideration of NY N244307 because you argue that the subject Wafer Catalyst “is not a ‘catalytic preparation’ described in Chapter 38 as it is similar to platinum grill (woven gauze – Chapter 71) and there is no substrate (prerequisite for 3815 – ‘Supported catalysts: - With precious metal or precious metal compounds as the active substance’) but the merchandise consists of pure platinum alloy.” CBP ruled in NY N244307 that the wafer catalysts are classified under subheading 3815.12.0000, HTSUS, as “Reaction initiators, reaction accelerators and catalytic preparations, not elsewhere specified or included; Supported catalysts: With precious metal or precious metal compounds as the active substance...”

ISSUE:

Are the Wafer Catalysts, as described above, properly classified under HTSUS heading 3815 as “Reaction initiators, reaction accelerators and catalytic preparations, not elsewhere specified or included”, or under HTSUS heading 7115 as “Other articles of precious metal or of metal clad with precious metal.”

LAW AND ANALYSIS:

Classification under the HTSUS is determined in accordance with the General Rules of Interpretation and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation (“ARI”). GRI 1 provides that the classification of goods 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 and legal notes do not otherwise require, GRIs 2 through 6 may be applied in order. GRI 6 states that [f]or legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.

The HTSUS provisions at issue are as follows:

3815 Reaction initiators, reaction accelerators and catalytic preparations, not elsewhere specified or included: 3815.90 Other: 3815.90.30 Other...

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7115 Other articles of precious metal or of metal clad with precious metal 7115.10.00 Catalysts in the form of wire cloth or grill, of platinum...

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You state that the Wafer Catalysts are “not a ‘catalytic preparation’ described in Chapter 38 [of the HTSUS] as it is similar to [a] platinum grill (woven gauze – Chapter 71 [, HTSUS]) and there is no substrate (prerequisite for 3815 – ‘Supported catalysts: - with precious metal compounds as the active substance’) but the merchandise consists of pure platinum alloy.” [Emphasis in original.]

However, note 3(d) of Chapter 71, HTSUS, provides that the chapter does not cover “Supported catalysts (heading 3815).” Additionally, note 1(e) of Chapter 38, HTSUS, provides in pertinent part that “[t]his chapter does not cover... catalysts consisting of metals or metal alloys in the form of, for example, finely divided powder or woven gauze (section XIV or XV).” Accordingly, catalysts of metals or metal alloys in the form, for example, woven gauze, are excluded from Chapter 38 unless they are “supported catalysts” as specifically provided for in Heading 3815. Given the description of the Wafer Catalysts, particularly that there is no substrate or any other kind of supporting substance, we find that that Note 3(d) is not applicable in this case. Note 1(b) of Chapter 71, HTSUS, provides that all articles of precious metal or of metal clad with precious metal are to be classified in Chapter 71. Note 4(b) of Chapter 71 defines Platinum, Rhodium, and Palladium as “platinum.” Note 4(a) of Chapter 71 defines “precious metal” in pertinent part as “platinum.” Thus, the Platinum, Rhodium, and Palladium that comprise the Wafer Catalysts are precious metals for the purposes of Chapter 71.

Heading 3815, HTSUS, provides for, among other things, catalytic preparations, not elsewhere specified or included. Heading 7115, HTSUS, specifically provides for “other articles of precious metal or of metal clad with precious metal.” Having established that the Wafer Catalysts are not supported (which does not exclude them from chapter 71) and that they are comprised of precious metal, we find that they are properly classified under Heading 7115. Specifically, the Wafer Catalysts are classified under subheading 7115.90.60 as “Other articles of precious metal or of metal clad with precious metal: Other: Other: Other...” Subheading 7115.10.00 is not applicable in this case because it has not been established that the Wafer Catalysts are in the form of wire cloth or grill.

HOLDING:

By application of GRI 1, the Wafer Catalysts are properly classified under Heading 7115. Specifically, the Wafer Catalysts are classified under subheading 7115.90.60 as “Other articles of precious metal or of metal clad with precious metal: Other: Other: Other...” The general column one rate of duty, for merchandise classified under this subheading is 4%. 

Duty rates are provided for your convenience and subject to change.  The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at https://hts.usitc.gov/.

EFFECT ON OTHER RULINGS:

CBP Ruling NY N244307 (August 16, 2013) is hereby REVOKED.

In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division