CLA-2: OT: RR: TCM: H278445 MAB
U.S. Customs and Border Protection
John F. Kennedy International Airport
Jamaica, NY 11430
Attn: Amy Berkitt, Senior Import Specialist
RE: Application for Further Review of Protest No. 4701-15-100296; N, N, N’, N’-Tetrakis (4-dibutylamino-phenyl)-p-phenylenediaminium dihexafluoroantimonate (CAS 5496-71-9)
Dear Port Director:
The following is our decision regarding the Application for Further Review (AFR) of Protest No. 4701-15-100296 timely filed on October 2, 2015, on behalf of Epolin Chemicals, LLC (Protestant). The AFR concerns the tariff classification of N, N, N’, N’-Tetrakis (4-dibutylamino-phenyl)-p-phenylenediaminium dihexafluoroantimonate (CAS 5496-71-9) under the Harmonized Tariff Schedule of the United States (HTSUS).
Protestant filed this AFR in regard to the entry of N, N, N’, N’-Tetrakis (4-dibutylamino-phenyl)-p-phenylenediaminium dihexafluoroantimonate (CAS 5496-71-9). It is also known as N3,N3,N6,N6-Tetrakis[4-(dibutylamino)phenyl]-1,4-cyclohexadiene-3,6-diaminium hexafluoroantimonate (1:2). The chemical formula is C62H94F12N6Sb2. This material is used as a chemical intermediate to manufacture dyes.
The subject merchandise was entered at JFK Airport on June 16, 2014, and classified under subheading 2921.51.1000, HTSUS, which provides for “Amine-function compounds: Aromatic polyamines and their derivatives; salts thereof: o-, m-, p-Phenylenediamine, diaminotoluenes, and their derivatives; salts thereof: 4-Amino-2-(N,N-diethylamino) toluene hydrochloride; m-Phenylenediamine; o-Phenylenediamine; Toluene-2,4-diamine; Toluene-2,5-diamine; and Toluene-2,5-diamine sulfate.” Protestant claimed Column 1 duty-free treatment under Special Tariff Program “L” or the Uruguay Round Concessions on Intermediate Chemicals for Dyes under the HTSUS. CBP liquidated the entry on October 10, 2014, under the same subheading but without duty-free treatment and at the Column 1 general rate of duty at 6.5%.
On January 15, 2015, Epolin filed AFR/Protest No. 4701-15-100040, recognizing that the instant chemical is not eligible for duty-free treatment under “L,” HTSUS, of subheading 2921.51.10, HTSUS; instead claiming it should be classified duty-free under subheading 2922.19.33, HTSUS, which provides for “Oxygen-function amino-compounds: Amino-alcohols, other than those containing more than one kind of oxygen function, their ethers and esters; salts thereof: Other: Aromatic: Other: N1-(2-Hydroxyethyl)-2-nitro-1,4-phenylenediamine; N1, N4, N4-Tris (2-hydroxyethyl)-2-nitro-1,4-phenylenediamine; N1,N4-Dimethyl-N1-(2-hydroxyethyl)-3-nitro-1,4-phenylene-diamine; N1,N4-Dimethyl-N1-(2,3-dihydroxy-propyl)-3-nitro-1,4-phenylenediamine; and N1-(2-Hydroxyethyl)-3-nitro-1,4-phenylenediamine.”
The CBP Laboratories and Scientific Services Directorate (LSSD) examined the structure of the subject chemical. In its analysis dated March 27, 2015, LSSD determined that it does not contain oxygen atoms. Rather, it is an inorganic salt of quaternary ammonium.
On July 10, 2015, CBP denied the protest and reliquidated the entry under subheading 2923.90.00, HTSUS, which provides for “Quaternary ammonium salts and hydroxides; lecithins and other phosphoaminolipids, whether or not chemically defined: Other.”
On October 2, 2015, Protestant filed the instant AFR/Protest No. 4701-15-100296 and again asserts classification under 2922.19.33, HTSUS.
Whether N, N, N’, N’-Tetrakis (4-dibutylamino-phenyl) - p - phenylenediaminium dihexafluoroantimonate (CAS 5496-71-9) is classified under heading 2922, HTSUS, as Oxygen-function amino-compounds or under heading 2923, HTSUS, as Quaternary ammonium salts and hydroxides.
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation. (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 will be accorded to a party filing an AFR that meets the requirements of section 174.25 and at least one of the criteria in section 174.24. The criteria for an AFR set forth in the applicable regulations, section 174.24 (19 C.F.R. §174.24), provide:
Further review of a protest which would otherwise be denied by the port director shall be accorded a party filing an application for further review which meets the requirements of §174.25 when the decision against which the protest was filed:
Is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise;
Is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts;
Involves 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; or
Is alleged to involve questions which the Headquarters Office, United States Customs Service, refused to consider in the form of a request for internal advice pursuant to §177.11(b)(5) of this chapter.
We find that Protestant meets the criteria in section 174.24(b) in that the instant case involves questions of law or fact that have not been ruled upon previously.
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 provides that the classification of goods shall be determined 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 headings and legal notes do not otherwise require, GRIs 2 through 6 may then be applied in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
The 2014 HTSUS provisions under consideration are as follows:
2922 Oxygen-function amino-compounds:
Amino-alcohols, other than those containing more than
one kind of oxygen function, their ethers and esters;
2923 Quaternary ammonium salts and hydroxides; lecithins and
other phosphoaminolipids, whether or not chemically
Chapter Note 3 to Chapter 29, HTSUS, reads:
Goods which could be included in two or more of the headings of this chapter are to be classified in that one of those headings which occurs last in numerical order.
Chapter Note 4 to Chapter 29, HTSUS, reads, in relevant part:
For the purposes of headings 29.11, 29.12, 29.14, 29.18 and 29.22, “oxygen- function” is to be restricted to the functions (the characteristic organic oxygen- containing groups) referred to in headings 29.05 to 29.20.
Chapter Note 5(C)(1) to Chapter 29, HTSUS, reads:
(C) Subject to note I to section VI and note 2 to chapter 28:
(1) Inorganic salts of organic compounds such as acid-, phenol- or enol-function compounds or organic bases, of subchapters I to X or heading 29.42, are to be classified in the heading appropriate to the organic compound;
Protestant argues that CBP’s classification of the instant product in heading 2923 is incorrect. It asserts that all of its amines are tertiary and exhibit different characteristics and chemistries from the quaternary amines (one additional group added with a “balancing” negative counter ion). It believes its chemical product does not contain quaternary amines and therefore cannot be classified in heading 2923. Instead, it claims that heading 2922 more accurately describes its product. Admitting that the classification is not ideal, Protestant reasons that since the instant chemical product has a component name (i.e., 1,4 phenylenediamine) that is similar in some aspects to those in heading 2922, it should be classified in this heading.
CBP LSSD concluded that the chemical structure at issue does not possess an oxygen-function group. Hence, it cannot be classified in heading 2922. See also, Chapter 29, Note 4.
Furthermore, “[i]t is well settled that the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct.” Aluminum Company of America v. United States, 477 F.2d 1396, 1398 (C.C.P.A. 1973) (hereinafter Alcoa). Absent a conclusive showing that the testing method used by the CBP laboratory is in error, or that the CBP laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 81 Cust. Ct. 87, 90-91 (1978). “If a prima facie case is made out, the presumption is destroyed, and the Government has the burden of going forward with the evidence.” Alcoa, 477 F.2d at 1399.
The instant chemical product has several identifiable functional groups present in the structure. The structure is aromatic and also possesses an antimony (Sb) based inorganic salt component. Notably, for classification purposes, there are amine functional groups and quaternary amine functional groups in the instant product. A quaternary ammonium is an amine functional group containing the structure as seen below in Figure 1.
Figure 1: Quaternary Ammonium Base Structure
Thus, the subject N, N, N’, N’-Tetrakis (4-dibutylamino-phenyl)- p- phenylenediaminium dihexafluoroantimonate (CAS 5496-71-9) is of both heading 2921 (amino – non oxygen function) and heading 2923 (quaternary ammonium). Heading 2923is the later heading and this inorganic salt of the organic compound quaternary ammonium is classified in heading 2923.
Therefore, based on Chapter 29, Notes 3 and 5(C)(1), classification of the instant chemical product is in heading 2923.
By application of GRI 1, the subject N, N, N’, N’-Tetrakis (4-dibutylamino-phenyl)- p- phenylenediaminium dihexafluoroantimonate (CAS 5496-71-9), is classified in heading 2923, HTSUS, and specifically in subheading 2923.90.0000, HTSUS, which provides for: “Quaternary ammonium salts and hydroxides; lecithins and other phosphoaminolipids, whether or not chemically defined: Other.” The 2014 column one general rate of duty is 6.2% ad valorem.
You are instructed to DENY 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 entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP home page at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Myles B. Harmon, Director
Commercial and Trade Facilitation Division
cc: Joseph A. DiSalvo, Chief, Trade Operations Branch D, Port of JFK International Airport