CLA-2 CO:R:C:F 955648 K
District Director
U.S. Customs Service
150 N. Royal Street
Mobile Alabama 36602
RE: Application For Further Review of Protest No. 1901-93100065;
Diphenyl Sulfone
Dear Sir:
The following is our response to the referral by your
office, dated December 29, 1993, of the request for further
review of the above-referenced protest.
FACTS:
The consumption entry covering the imported merchandise was
liquidated on November 12, 1993, under the provision for other
organo-sulfur compounds, aromatic pesticides, subheading
2930.90.1000, Harmonized Tariff Schedule of the United States
(HTSUS), with duty at the general rate of 12.5 percent ad
valorem. A timely classification protest under 19 U.S.C. 1514
was received on November 18, 1993, in which, the protestant
requested reliquidation of the entry under the provision for
other aromatic organo-sulfur compounds (that is, not as an
aromatic pesticide), in subheading 2930.90.2800, HTSUS, with duty
at the rate of 6.7 percent ad valorem.
New York Ruling Letter (NYRL) 838474, dated March 30, 1989,
held, in part, that the subject merchandise was classifiable in
subheading 2930.90.1000, HTSUS. It is the position of the
protestant that the merchandise is not a pesticide and that it is
not an active ingredient used to manufacture a pesticide. The
protestant claims that the merchandise is used as an organic
intermediate to make flame retardants for plastics.
Since the filing of the protest, the protestant submitted a
letter from the United States Environmental Protection Agency,
dated April 26, 1994, stating that "there are no registered
pesticide products in the U.S. that contain Diphenyl Sulfone as
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an active ingredient." In addition, the protestant has submitted
a letter dated March 29, 1994, from a domestic manufacturer of
Diphenyl Sulfone in which the manufacturer states that no other
use has been found for Diphenyl Sulfone outside the plastics
industry.
ISSUE:
The issue is whether Diphenyl Sulfone is classifiable as an
other aromatic pesticide in subheading 2930.90.1000, HTSUS.
LAW AND ANALYSIS:
There is no dispute that Diphenyl Sulfone is an organo-sulfur compound classifiable in heading 2930, HTSUS. However,
the protestant has sustained its claim by the submission of the
documentation discussed above that Diphenyl Sulfone is not used
as a pesticide or used as an ingredient in the manufacture of a
pesticide. Therefore, Diphenyl Sulfone is classifiable in
subheading 2930.90.2800, HTSUS, as claimed.
NYRL 838474, in so far as the classification of Diphenyl
Sulfone is concerned, no longer represents the position of the
Customs Service and has been revoked.
HOLDING:
Diphenyl Sulfone is classifiable in subheading 2930.90.2800,
HTSUS, (1993) under the provision for organo-sulfur compounds:...
Other ... Aromatic:...Other...Other, with duty at the general
rate of 6.7 percent ad valorem. (Note that subheading
2930.90.2800 was deleted from the HTSUS in 1995, and that
diphenyl sulfone is now classifiable in subheading 2930.90.2900,
added to the HTSUS in 1995.)
This decision follows the ruling in Customs Headquarters
Ruling dated December 5, 1994 (956977), published on December 21,
1994, in the Customs Bulletin and Decisions, Volume 28, Number
51.
You are directed to allow the protest in full.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, Revised Protest Directive, dated August 4, 1993, a
copy of this decision, attached to Customs Form 19, Notice of
Action, should be provided by your office to the protestant no
later than 60 days from the date of this decision and any
reliquidations of entries in accordance with this decision must
be accomplished prior thereto. Sixty days from the date of this
decision the Office of Regulations and Rulings will take steps to
make this decision available to Customs personnel via the Customs
Rulings Module in ACS and the public via the Diskette
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Subscription Service, Freedom of Information Act and other public
access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division