CLA-2-RR:CR:GC 960055 EAB
Port Director
U.S. Customs Service
1 East Bay Street
Savannah, Georgia 31401
Re: Protest 1703-96-100148, concerning merchandise identified as "AS-274" and "SA-81"; CAS No. 85-60-8 not listed
Dear Port Director:
This is a decision on Protest 1703-96-100148 filed on October 24, 1996, against your decision in the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of merchandise identified as “AS-274" and “SA-81" entered during 1995. The entries were liquidated on September 6 and October 11, 1996.
FACTS:
The merchandise was entered as polyphenols of heading 2907, HTSUSA.
Customs Laboratory Report 2-1998-21137-001 of April 9, 1998, states that the product identified as “AS-274" is a mixture of three benzenediols with varying side chain substituents. The mixture is a preparation for photographic uses.
Customs Laboratory Report 2-1998-21138-001 of April 9, 1998, states that the product identified as “SA-81" is a single, separate chemically defined organic compound, the name of which is 4,4'-(butylidene-bis(2-(1,1-dimethylethyl)-5-methylphenol, assigned CAS No. 85-60-8, which number is not listed in the Chemical Appendix to the tariff schedule.
Customs liquidated the entries of the merchandise as follows: for the product identified as “AS-274", in subheading 3823.90.2800, HTSUSA, a residual provision for chemical products and preparations, not elsewhere specified or included, consisting of “Other” mixtures containing 5 percent or more by weight of one or more aromatic or modified aromatic substances, bearing duty at the column 1 General rate of 3.3 cents/kg plus 12.9 percent ad valorem; for the product identified as “SA-81", in subheading 2907.19.2000, HTSUSA, the provision for alkylphenols, bearing duty at the column 1 General rate of 10.4 percent ad valorem.
According to Customs records, drawback has been claimed on one or both protested entries.
By letter dated January 15, 1999, Protestant has amended its claim, and seeks reclassification of “AS-274" in subheading 3707.90.3290, HTSUS, the residual provision for chemical preparations for photographic uses, and of “SA-81" in subheading 2907.29.9000, the residual provision for polyphenols.
ISSUE:
Whether "AS-274", a mixture of benzenediols for photographic uses, and "SA-81", a polyphenol, are classified as polyphenols or otherwise.
LAW AND ANALYSIS:
Merchandise imported into the U.S. is classified under the HTSUSA. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUSA and are to be considered statutory provisions of law for all purposes.
Legal Notes 1(a) and 1(b), Chapter 29, HTSUSA, provide in pertinent part as follows:
1. Except where the context otherwise requires, the headings of this chapter apply only to:
(a) Separate chemically defined organic compounds, whether or not containing impurities;
(b) Mixtures of two or more isomers of the same organic compound (whether or not containing impurities), except mixtures of acyclic hydrocarbon isomers (other than stereoisomers), whether or not saturated (chapter 27); [. . .]
We find that “AS-274" is not a separate chemically defined compound, but a mixture of three organic chemicals, none of which is an isomer “of the same organic compound”. Such a preparation, used in photographic applications, is properly classifiable in subheading 3707.90.3290, HTSUSA, the residual provision for chemical preparations for photographic uses.
We find that “SA-81" is not an alkylphenol, but a bis-phenol, properly classifiable in subheading 2907.29.9000, HTSUSA, the provision for “Other” polyphenols.
HOLDING:
You are instructed to allow the protest in part for “SA-81" and deny the protest in part for “AS-274", except to the extent that reclassification of the merchandise as indicated results in a partial allowance.
Because drawback is claimed in one or both entries, please ensure compliance with 19 CFR 191.81.
“AS-274", a mixture of three organic chemicals, none of which is an isomer of the others, used in photographic applications, is properly classifiable in subheading 3707.90.3290, HTSUSA, the residual provision for chemical preparations for photographic uses. Merchandise so classified and entered in 1995 was dutiable at the column 1 General rate of 8.1 percent ad valorem.
“SA-81", a bis-phenol, is properly classifiable in subheading 2907.29.9000, HTSUSA, the provision for “Other” polyphenols. Merchandise so classified and entered in 1995 was dutiable at the column 1 General rate of 6.9 percent ad valorem.
A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as a part of the notice of action on the protest.
In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to the mailing of this decision by your office.
Sixty days from the date of this decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
[Marvin Amernick, for]
John A. Durant, Director
Commercial Rulings Division