CLA-2 RR:CR:GC 960961 MGM
Port Director, Port of New York
c/o Chief, Residual Liquidation and Protest Branch
6 World Trade Center
Room 761
New York, New York 10048-0945
Re: Protest 1001-97-103540; Cresylic acid (with cresol levels
below 75%)
Dear Port Director:
This is our decision on Protest 1001-97-103540, concerning
your classification decision regarding the chemical compound
"Cresylic Acid (with cresol levels below 75%)" under the
Harmonized Tariff Schedule of the United States (HTSUS). In
preparing this decision, consideration was given to submissions
of counsel for the protestant dated August 4, 12, 13, 1997, and
September 29, 1997, as well as arguments presented by counsel in
a meeting at our office on August 7, 1997.
FACTS:
The subject commodity is cresylic acid. Cresylic acid is a
generic name for coal tar derivatives containing isomers of meta,
para, and ortho cresols, xylenols, phenol, and other higher
phenols. A cresol is a compound which has both a hydroxy group
and a methyl group affixed to a benzene ring. Meta, para, and
ortho refer to the relative positions of these two groups on the
ring. A xylenol has a hydroxy group and two methyl groups
affixed to a benzene ring; five different isomers are possible.
Phenol is used both to describe a specific compound where a
hydroxy group is attached to the benzene ring, and to describe "a
class of aromatic organic compounds in which one or more hydroxy
groups are attached directly to the benzene ring. Examples are
phenol...the cresols, xylenols." Hawley, The Condensed Chemical
Dictionary, tenth ed. Customs Laboratory Reports (No. 2-96-21564-001 dated 5-16-96; No. 2-97-20822-001 dated 3-5-97) showed
that the sample is mainly composed of isomers of xylenol, isomers
of cresol, and other alkyl phenols. The sample, a mixture of
phenols, does not contain metacresol, orthocresol, paracresol,
and metaparacresol all the foregoing having a purity of 75% or
more by weight.
Protestant was directed to enter the merchandise under
subheading 2707.60.2000, HTSUS, as "Oils and other products of
the distillation of high temperature coal tar; similar products
in which the weight of the aromatic constituents exceeds that of
the nonaromatic constituents: Phenols: Other." Protestant
asserts that the merchandise is properly classifiable under
subheading 2707.99.50, HTSUS, as "Oils and other products of the
distillation of high temperature coal tar; similar products in
which the weight of the aromatic constituents exceeds that of the
nonaromatic constituents: Other: Other." The ten entries here
protested were made from February 1996 to February 1997, and
liquidated in the period from February 14, 1997, to May 2, 1997.
A protest was timely filed on May 15, 1997.
ISSUE:
Whether cresylic acid is properly classifiable under
subheading 2707.60.90, HTSUS, a retroactive provision of the
HTSUS promulgated after the date of protest.
LAW AND ANALYSIS:
Merchandise imported into the U.S. 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.
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 and, unless otherwise
required, according to the remaining GRIs taken in order.
Subsequent to the protest being filed, modifications were
made to the HTSUS. Notice of these changes was published in the
Federal Register on March 11, 1998 (63 FR 11946). Subheadings
2707.60.10 and 2707.60.20 were deleted from the HTSUS by action
of the Office of the United States Trade Representative (USTR)
titled "Technical correction to the Harmonized Tariff Schedule of
the United States." The USTR made this modification pursuant to
authority granted by Congress to the President in section 604 of
the Trade Act of 1974 and delegated by the President to the USTR
in Presidential Proclamation No. 6969 of January 27, 1997 (62 FR
4415). The following new subheadings were inserted in lieu of
the deleted provisions:
[2707 Oils and other products of the distillation...:]
[2707.60 Phenols:]
2707.60.05 Containing more than 50 percent by 2.9›/kg +
12.5% . weight hydroxybenzene.
2707.60.10 Metacresol, orthocresol, paracresol 0.9›/kg +
3.1%
and metaparacresol, all the foregoing having a
purity of 75 percent or more by weight.
2707.60.90 Other Free
This provision is retroactive "with respect to articles that are
entered, or withdrawn from warehouse for consumption, on or after
December 31, 1995." As the instant merchandise was entered after
this date, the new provisions are applicable to its
classification.
Evaluation of the Customs laboratory reports reveals that
subheading 2707.60.05, HTSUS, and subheading 2707.60.10, HTSUS,
are inapposite.
HOLDING:
The protest should be granted. Cresylic acid with cresol
levels below 75% is correctly classified under subheading
2707.60.90, HTSUS, and is duty-free.
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 together
with the Customs Form 19, Notice of Action, 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 the decision. Sixty days
from the date of this decision, the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and to the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division