CLA-2 RR:CR:GC 960979 ALS
Port Director of Customs
U.S. Customs Service
200 East Bay St.
Charleston, SC 29401
RE: Application for Further Review of Protest 1601-97-100165,
dated July 10, 1997, regarding DTDM Powder (4,4'-Dithio-bis-Morpholine)
Dear Mr. Miller:
This ruling is in reference to a protest filed against
multiple decisions of yours issued between April 10, 1997, and
May 30, 1997, concerning the classification of the subject
merchandise.
FACTS:
The goods under consideration, as stated in the protest, is
DTDM powder (CAS # 103-34-4). It is stated to be a pure chemical
moiety with no polymeric units. Counsel states that it is not
possible to polymerize DTDM powder, in that there is no
recognized polymerization chemistry by which this type of
chemical could polymerize. It is further stated that there are
no unsaturated olefinic groups which could polymerize. It is
additionally stated that the DTDM powder cannot polymerize by
free radical polymerization, by anionic polymerization, or by
cationic polymerization.
ISSUE:
What is the classification of the instant chemical?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI's) taken in order. GRI
1 provides that the classification is determined first in
accordance with the terms of the headings and any relative
section and chapter notes. If GRI 1 fails to classify the goods
and if the headings and legal notes do not otherwise require, the
remaining GRI's are applied, taken in order.
In reviewing the documents of record, we note that an
analysis by a Customs laboratory of a sample of the goods
submitted by the importer in connection to a request for same
related to the entries being protested, found the goods to be a
yellow powder, a phenolic polymeric material. Analysis by
another Customs Laboratory of a sample submitted with another
entry and which was stated to be the same product was consistent
with the claim of the importer, i.e., the product is Morpholine.
A review of the analyses performed at both Customs
laboratories confirmed that there was a variance between the
goods covered by the instant protest and the sample submitted for
analysis in connection therewith and the other sample submitted
for analysis.
Based on a further review of the laboratory analysis, we
have concluded that the findings in the latter analysis are
consistent with that expected for Morpholine and that the
liquidations of the entries covering the merchandise as a
phenolic polymeric material was based on the submitted sample
which was not representative of the entered goods covered by the
instant protest.
HOLDING:
DTDM powder (4,4'-Dithio-bis-Morpholine) (CAS # 103-34-4) is
classifiable in subheading 2934.90.9000, HTSUSA.
Since reclassification of the merchandise as indicated above
will result in the same rate of duty as claimed or a lower rate
of duty for all the entries noted in the protest, except the
chronologically oldest one, you are instructed to allow the
protest in full as to those entries. Insofar as liquidation of
the remaining entry would result in a rate of duty less that the
rate of duty claimed but more than the rate for the liquidated
classification, you are instructed to deny the protest, except to
the extent reclassification of the merchandise as indicated above
results in a partial allowance.
A copy of this ruling should be attached to the Customs Form
19 and provided to the protestant as part of the notice of action
on the protest.
In accordance with Section 3A(11)(b) of Customs Directive
099-3553-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be provided by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entries in accordance with this decision
must be accomplished prior to the mailing of the decision .
Sixty days from the date of the decision the Office of
Regulations and Rulings will take steps to make the decision
available to Customs personnel via the Customs Ruling Module in
ACS and the public via the Diskette Subscription Service, Freedom
of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division