CLA-2 RR:CR:GC 965532 AM
Port Director
U.S. Customs Service
101 East Main St.
Norfolk, VA 23510
Re: Protest 1401-01-100086; Mixland® DPTT 67 BE F140
Dear Port Director:
This is our decision on Protest 1401-01-100086 against your decision in the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of Mixland® DPTT 67 BE F140.
FACTS:
Mixland® DPTT 67 BE F140 is a dispersion of 67% dipentamethylene thiuram tetrasulfide (DPTT) and 33% ethylene propylene copolymer and paraffinic oil. DPTT is assigned CAS 120-54-7 and constitutes a single chemical compound. The merchandise is used as prepared rubber accelerator added to rubber compounds to accelerate rubber cure. The ethylene propylene copolymer and paraffinic oil added to the DPTT to create the imported merchandise constitute a binder designed for better viscosity, reduced mixing time, better handling, and wide compatibility with elastomers.
Mixland® DPTT 67 BE F140 was classified upon entry in subheading 3812.20.50, HTSUS, the provision for "[P]repared rubber accelerators; compound plasticizers for rubber or plastics, not elsewhere specified or included; antioxidizing preparations and other compound stabilizers for rubber or plastics: [P]repared rubber accelerators; [O]ther." Customs changed the classification and liquidated the entries in subheading 2933.29.08, HTSUS, the provision for “[H]eterocyclic compounds with nitrogen hetero-atom(s) only: [C]ompounds containing an unfused pyrazole ring (whether or not hydrogenated) in the structure: Other: 1-(3-Sulfopropyl)pyridinium hydroxide; N,N'-Bis(2,2,6,6-tetramethyl-4-piperidinyl)-1,6-hexanediamine; 3,5-Dimethyl-2-hydroxymethyl-4-methoxy-pyridine (pyrmethyl alcohol); Dipentamethylenethiuram tetrasulfide; 2H-Indol-2-one,1,3-dihydro-1-phenyl-3-(4-pyridinylmethylene); 4-Picolyl chloride hydrochloride; and Piperidinoethyl chloride hydrochloride."
The subject of this protest is14 entries made in 2000 and 2001. The entries were liquidated on various dates between February 9, 2001 and February 1, 2002. The subject protest was filed on June 4, 2001.
ISSUES:
Whether Protest 1401-01-100086 is timely filed as to all 14 of the subject entries.
2. Whether Mixland® DPTT 67 BE F140 is a single chemical compound under Chapter 29 note 1, HTSUS.
LAW AND ANALYSIS:
Protest Procedure
19 CFR § 174.12(e)(1) states, in pertinent part, the following:
Protests shall be filed, in accordance with section 5134, Tariff Act of 1930, as amended (19 U.S.C. 1514), within 90 days after either:
The date of notice of liquidation or reliquidation in accordance with §§159.9 or 159.20 of this chapter; (emphasis added).
Only 5 of the entries are timely protested under the regulations. The last four digits of their entry numbers are 5803, 9730, 6344, 6567 and 8816. Two of the entries were liquidated more than 90 days before the protest was filed and 7 of the entries were liquidated after the protest was filed. Under 19 CFR 174.12, a protest must be filed after liquidation of the entries upon which it is based. The protest is therefore denied in relation to the entries that are untimely filed.
Classification
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 and, unless otherwise required, according to the remaining GRIs taken in their appropriate 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 the GRIs. In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The following HTSUS headings are under considration:
Heterocyclic compounds with nitrogen hetero-atom(s) only: Compounds containing an unfused pyrazole ring (whether or not hydrogenated) in the structure:
Prepared rubber accelerators; compound plasticizers for rubber or plastics, not elsewhere specified or included; antioxidizing preparations and other compound stabilizers for rubber or plastics:
The Chapter Notes to Chapter 29 specifically state:
1. Except where the context otherwise requires, the headings of this Chapter apply only to:
(a) Separate chemically defined organic compounds, whether or not containing impurities; . . . .
The Explanatory Notes to chapter 29 state, in pertinent part, the following:
(A) Chemically defined compounds
(Chapter Note 1)
. . . 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)). . . .
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.
The instant product consists of DPTT and a binder system. DPTT is a single chemical compound classified in heading 2933, HTSUS, as a “Heterocyclic compounds with nitrogen hetero-atom(s) only containing an unfused pyrazole ring.” The binder system can not be described as unconverted starting materials, impurities present in the starting materials, reagents used in the manufacturing process, by-products or as an impurity that results directly from the manufacturing process. Rather, the binder system is deliberately added to the instant merchandise to render the product specifically suitable as a rubber accelerator. The instant merchandise is therefore excluded from classification in Chapter 29 by action of note 1 to that chapter.
HOLDING:
Mixland® DPTT 67 BE F140 is classified in subheading 3812.10.50, HTSUS, the provision for “Prepared rubber accelerators; compound plasticizers for rubber or plastics, not elsewhere specified or included; antioxidizing preparations and other compound stabilizers for rubber or plastics: [P]repared rubber accelerators; [O]ther.”. The protest should be Allowed, in part, with respect to the entries for which it was timely filed. The protest is denied with respect to the entries for which it is untimely filed.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs 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 of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division