CLA-2 OT:RR:CTF:CPM H267036 MAB
Port Director
Service Port New York/Newark
U.S. Customs and Border Protection
1210 Corbin Street
Elizabeth, NJ 07201
Attn: Jennifer Tagliaferro, Supervisory Import Specialist
RE: Protest and Application for Further Review of Protest No. 4601-15-100529; Astromusk Concentrate Combined with One of Four Solvents (BB, DEP, DPG, or IPM)
Dear Port Director:
This is in response to the Application for Further Review (AFR) of Protest Number 4601-15-100529, dated April 21, 2015, timely filed by McGuire Woods LLP (Counsel), on behalf of Makhteshim-Agan of NA, Inc. (Makhteshim-Agan or Protestant). The AFR concerns the U.S. Customs and Border Protection’s (CBP) classification of six (6) entries of Astromusk concentrate combined with one (1) of four (4) solvents (BB, DEP, DPG, or IPM) under the Harmonized Tariff Schedule of the United States (HTSUS). Protestant did not submit samples for inspection, but we considered descriptions of the subject merchandise.
FACTS:
The subject merchandise is Astromusk concentrate (CAS No. 1222-05-5) (whose chemical formula is also depicted in Figure 1 below), an organic compound, mixed with one (1) of four (4) solvents: 1) Astromusk-BB – the solvent is benzyl benzoate (CAS No. 120-51-4); 2) Astromusk-DEP – the solvent is diethyl phthalate (CAS No. 84-66-2); 3) Astromusk-DPG – the solvent is dipropylene glycol (CAS No. 25265-71-8); and 4) Astromusk-IPM – the solvent is isopropyl myristate (CAS No. 110-27-0).
The key property of Astromusk concentrate is its odor which can be described as clean, sweet, musky, floral, and woody. It is not combined with each of the four (4) solvents for safety or transportation purposes. Instead, each solvent creates a mixture formulated for a specific end-use as follows:
Astromusk-BB is used in items that flame such as candles and lamps that disuse environmental fragrances.
Astromusk-DEP is found in soaps, detergents and all kinds of “wash off” products. It is absent of color and odor.
Astromusk-DPG is formulated for use in perfumes and Eau de Toilette. DPG is a fluidized solvent with a high boiling point and very low toxicity properties. It is used in perfumes. It is soluble in alcohol and miscible in water.
Astromusk-IPM finds utility in a wide variety of cosmetics and toiletries. It has absorption and emollient properties. It is used as a base carrier in cosmetics and non-aqueous mouthwash.
Figure 1
Protestant entered the subject merchandise in six (6) separate entries at the Port of New York/Newark on November 6, 2014, November 13, 2014, and December 4, 2014, in subheading 3302.90.1050, HTSUS, which provides for, “Mixtures of odoriferous substances and mixtures (including alcoholic solutions) with a basis of one or more of these substances, of a kind used as raw materials in industry; other preparations based on odoriferous substances, of a kind used for the manufacture of beverages: Other: Containing no alcohol or not over 10 percent of alcohol by weight…Other.” On February 20, 2015, CBP liquidated the entries under subheading 2932.99.7000, HTSUS, which provides for “Heterocyclic compounds with oxygen hetero-atom(s) only: Other: Other: Aromatic: Other: Other.” Protestant claims classification as entered.
ISSUE:
Whether the subject Astromusk concentrate combined with one (1) of four (4) solvents (BB, DEP, DPG, or IPM) are properly classified in heading 2932, HTSUS, as heterocyclic compounds with oxygen hetero-atom(s) only, or in heading 3302, HTSUS, as mixtures of odoriferous substances, of a kind used in industry.
LAW AND ANALYSIS:
Initially, we note that this matter is protestable under 18 U.S.C. §1514(a), as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2003. (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 No. 4601-15-100529 is properly accorded to the Protestant pursuant to 19 C.F.R. §174.24(c) because the decision against which the protest was filed is alleged to involve matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts, but facts are alleged or legal arguments presented which were not considered at the time of the original ruling.
Merchandise imported into the United States is classified under the HTSUS. 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 requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first 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 heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The 2014 HTSUS subheadings under consideration are the following:
2932 Heterocyclic compounds with oxygen hetero-atom(s)
only: Other: 2932.99 Other:
Aromatic:
Other:
2932.99.7000 Other
***************
3302 Mixtures of odoriferous substances and mixtures
(including alcoholic solutions) with a basis of one or more
of these substances, of a kind used as raw materials in
industry; other preparations based on odoriferous
substances, of a kind used for the manufacture of
beverages:
3302.90 Other:
3302.90.10 Containing no alcohol or not over 10 percent of
alcohol by weight
3302.90.1050 Other
***************
Note 1(e) to Chapter 29 states, in pertinent part:
Except where the context otherwise requires, the headings of this chapter apply only to:
Separate chemically defined organic compounds, whether or not containing impurities; [ ]
(e) Products mentioned in (a), (b) or (c) above 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;
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized system at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTS and are thus useful in ascertaining the proper classification of the merchandise. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The ENs to Chapter Note 1 to Chapter 29 state, in pertinent part:
Chemically defined compounds
(Chapter Note 1)
A separate chemically defined compound is a substance which consists of one molecular species (e.g., covalent or ionic) whose composition is defined by a constant ratio of elements and can be represented by a definitive structural diagram. In a crystal lattice, the molecular species corresponds to the repeating unit cell.
Separate chemically defined compounds containing other substances deliberately added during or after their manufacture (including purification) are excluded from this Chapter. Accordingly, a product consisting of saccharin mixed with lactose, for example, to render the product suitable for use as a sweetening agent is excluded (see Explanatory Note to heading 29.25).
The separate chemically defined compounds of this Chapter may contain impurities (Note 1 (a)). An exception to this rule is created by the wording of heading 29.40 which, with regard to sugars, restricts the scope of the heading to chemically pure sugars.
The term “impurities” applies exclusively to substances whose presence in the single chemical compound results solely and directly from the manufacturing process (including purification). These substances may result from any of the factors involved in the process and are principally the following:
(a) Unconverted starting materials.
(b) Impurities present in the starting materials.
(c) Reagents used in the manufacturing process (including purification).
(d) By-products.
It should be noted, however, that such substances are not in all cases regarded as “impurities” permitted under Note 1 (a). When such substances are deliberately left in the product with a view to rendering it particularly suitable for specific use rather than for general use, they are not regarded as permissible impurities. For example, a product consisting of methyl acetate with methanol deliberately left in with a view to improving its suitability as a solvent is excluded (heading 38.14).
EN 33.02 states, in pertinent part, as follows:
This heading covers the following mixtures provided they are of a kind used as raw materials in the perfumery, food or drink industries (e.g., in confectionery, food or drink flavourings) or in other industries (e.g., soap-making):
**********
(6) Mixtures of one or more odoriferous substances (essential oils, resinoids, extracted oleoresins or synthetic aromatics) combined with added diluents or carriers such as vegetable oil, dextrose or starch.
(7) Mixtures, whether or not combined with a diluent or carrier or containing alcohol, of products of other Chapters (e.g., spices) with one or more odoriferous substances (essential oils, retinoids, extracted oleoresins or synthetic aromatics), provided these substances form the basis of the mixture.
The subject merchandise is Astromusk concentrate mixed with one (1) of four (4) solvents: BB, DEP, DPG or IPM. The active ingredient in Astromusk concentrate is an organic 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. Astromusk–BB, Astromusk–DEP, Astromusk-DPG and Astromusk-IPM, however, are not separate chemically defined organic compounds, but solutions; each is a homogenous mixture with Astromusk serving as the solute and either the BB, DEP, DPG or IPM serving as the solvent.
Note 1 to Chapter 29, HTSUS, however, does offer certain allowances in regard to the general rule above. Note 1(e) to Chapter 29, HTSUS, 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.”
In your AFR, you claim that the solvents are more than mere dilutants in that each has different properties, making Astromusk suitable for a specific rather than a general use. In other words, each solvent that is added creates a mixture formulated for a specific end-use (e.g., soaps, detergents, perfumes, cosmetics, etc.). You state the solvents are not added for safety or transportation purposes because if this were true, only one type of solvent would be needed instead of four. Thus, you assert that the headings of Chapter 29 do not apply to the products at issue.
You also argue that NY 818805 (March 7, 1996) and NY N196797 (February 3, 2012), classifying similar merchandise in subheading 2932.99.70, are incorrect rulings and must be revoked.
We agree that the allowances set forth in Note 1(e) do not bring the product at issue within the scope of products covered by the headings of Chapter 29. We find support in Headquarters Rulings HQ 965089 (January 31, 2002) and HQ 968018 (January 9, 2006) wherein CBP classified similar products in Heading 3824, specifically in subheading 3824.90.9190 and 3824.90.29, respectively, and not Chapter 29.
HQ 965089, citing HTS Chapter 29 Note 1(e) and General EN note 1, excluded Heading 2922. In this ruling, the solvent toluene was found to be “in the product because its presence does not hinder and actually aids in the manufacture of the final product after importation as more toluene is added in the production of dextro-propoxyphene.” Therefore, the large amount of solvent left in the product had a specific use and did not remain merely for safety or transportation.
HQ 968018, citing HTS Chapter 29 Notes 1(e) and (g) and General EN Note 1, excluded HTS Heading 2924 since the solvent, propylene glycol, was not merely an anti-dusting agent for safety purposes as the Protestant asserted, but part of the solution “because of its compatibility with and authorized use in pharmaceutical preparations, cosmetics, toiletries, perfumes, etc.” Further, similar to the instant case, this ruling notes, “[i]f the propylene glycol merely served as an anti-dusting agent that was suitable for general use, there would be no need for the two other varieties of solution…” We find a direct parallel between HQ 968018 and the subject merchandise.
As the products at issue do not fall within the scope of merchandise covered by the headings of Chapter 29, HTSUS, they cannot be classified in heading 2932, HTSUS. The products are, however, classifiable in heading 3302, HTSUS. Heading 3302 provides for:
Mixtures of odoriferous substances and mixtures (including alcoholic solutions) with a basis of one or more of these substances, of a kind used as raw materials in industry; other preparations based on odoriferous substances of a kind used for the manufacture of beverages:
The Miriam Free Online Dictionary provides the following definition of “musk”:
1 a: a substance with a penetrating persistent odor obtained from a sac beneath the adnominal skin of the make musk deer and used as perfume fixative; also : a similar substance from another animal or a synthetic substitute
b: the odor of musk; also : an odor resembling musk especially in heaviness or persistence
2: any of various plants with musky odors; especially: musk plant
The specific chemical compound noted as the main ingredient, isochroman musk, is indicated in patent information available at: http://www.google.ms/patents/US4301076 to be used in the following manner:
Addition of said indane alkanols and tricyclic isochromans or mixtures thereof is indicated to produce:
In food flavorings, a sweet, musky aroma and taste; and
In perfumes and perfumed articles and colognes, a sweet, musk aroma. Addition of said indane alkanols and tricyclic isochromans or mixtures thereof is indicated to produce:
In food flavorings, a sweet, musky aroma and taste; and
In perfumes and perfumed articles and colognes, a sweet, musk aroma.
Additionally, the solvents added in all four products are shown to have specific uses in cosmetic and fragrance chemistry as a raw material. Some references and descriptions of use are:
BENZYL BENZOATE: Benzyl benzoate is used as solvent and preservative; associated with allergies and contact dermatitis.
Function(s): Fragrance Ingredient; Solvent; ANTIMICROBIAL; MASKING
(http://www.ewg.org/skindeep/ingredient/700698/BENZYL_BENZOATE)
Diethyl Phthalate (DEP) in Cosmetics Deemed Safe
A variety of personal care products contain fragrance. Fragrances are complex combinations of natural and man-made substances that are added to products to give them a distinctive smell, and enhance the experience of using the product. According to the Personal Care Products Council, fragrance is one of the key factors that affect people’s preference for products.
DEP, or diethyl phthalate, is commonly used as an ingredient in fragrances for perfumes, lotions, and other personal care products to make the scent last longer. Fragrance mixtures may contain up to 50 percent DEP, but fragrance is only a small part of the end product. After all of the other ingredients are added, DEP typically comprises less than 2 percent of the consumer product.
(http://phthalates.americanchemistry.com;Phthalates-Basics/Peronal- Care-Products/Diethyl-Phthlate-DEP-in-Cosmetics-Deemed-Safe.html)
Dipropylene glycol: Dipropylene glycol is a small molecular weight synthetic solvent.
Function(s): Fragrance Ingredient; Solvent; Viscosity Decreasing Agent; MASKING; ISCOSITY CONTROLLING
(http://www.ewg.org/skinkeep/ingredient/702123/DIPROPYLENE_GLYCOL/)
(Isopropyl myristate)- Solvent for skin-perfumes, cosmetics, lipsticks, incense. May be used as a fast absorbing carrier oil in massage oils. May also be used to replace alcohol to make non-alcoholic perfumes. It is a cosmetic grade oil produced from Iso-Propanol (alcohol from sugar beets) reacted with Myristic Acid from Palm or Coconut Oil. Most perfume compounds can be diluted in IPM but if there is an excess of crystalline or powdered materials, terpenes, resins of citrus oils they may fall out of solution.
(http://www.perfumersworld.com/product/0ZZ00239.html)
The Explanatory Notes for Heading 3202 indicate that the Heading provides for in part:
(6) Mixtures of one or more odoriferous substances (essential oils, resinoids, extracted oleoresins or synthetic aromatics) combined with added diluents or carriers such as vegetable oil, dextrose or starch.
(7) Mixtures, whether or not combined with a diluent or carrier or containing alcohol, of products of other Chapters (e.g., spices) with one or more odoriferous substances (essential oils, retinoids, extracted oleoresins or synthetic aromatics), provided these substances form the basis of the mixture.
We note, too, that HQ H274972 (August 18, 2016) revoked N196792 (February 3, 2012) and NY C85217 (March 18, 1998) in regard to the classification of Galaxolide® mixtures, a similar product to Astromusk concentrate mixed with one (1) of four (4) solvents (BB, DEP, DPG, or IPM). In HQ H274972, CBP held that Galaxolide mixtures are properly classified in heading 3302, HTSUS. In H280915, CBP modified NY 818805 (March 7, 1996) in regard to a similar product called Musk 50/DEP/BB/IPM (Chemical Name – 1,3,4,6,7,8-Hexamethyl-Cyclopenta(G)-2-Benzopyran; CAS 1222-05-5).
HOLDING:
By application of GRI 1, the subject Astromusk concentrate mixed with one (1) of four (4) solvents (BB, DEP, DPG, or IPM) is classified in heading 3302, HTSUS. Specifically, it is provided for in subheading 3302.90.1050, HTSUS, which provides for: “Mixtures of odoriferous substances and mixtures (including alcoholic solutions) with a basis of one or more of these substances, of a kind used as raw materials in industry; Containing no alcohol or not over 10 percent of alcohol by weight: Other.” The 2014 column one general rate of duty is free.
Duty rates are provided for your convenience and are subject to change. The test of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
Although NY N196797, NY C85217 and NY 818805 were in force at the time of entry, NY N196797 and NY C85217 have been revoked by H274972 (August 18, 2016) and HQ H280915, a revocation proposing to revoke NY 818805, was published on June 7, 2017, in Customs Bulletin, Vol. 51, No. 23. Therefore, you are instructed to GRANT the protest.
In accordance with sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with the decision must be accomplished prior to the mailing the decision.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website at http://www.cbp.gov by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial Trade and Facilitation Division