CLA-2 RR:CR:GC 966035AM
Port Director
U.S. Customs Service
610 S. Canal Street, Room 306 Chicago, IL. 60607
Re: Protest 3901-02-101085; Magnesium Desulfurization Reagent
Dear Port Director:
This is our decision on Protest 3901-02-101085, filed by counsel on behalf of Rossborough-Remacor LLC, against your decision in the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a magnesium desulfurization reagent.
FACTS:
The magnesium desulfurization reagent is composed of 90% magnesium metal, 9% calcium oxide and 1% magnesium oxide. Customs Laboratory Report #NY20021591, dated January 24, 2003, states, in pertinent part, that “the product is a mixture of inorganic substances. Technical literature indicates that substances or preparations containing calcium and magnesium can be used for the removal of sulfur in steel production.”
Customs Laboratory Report #SF20030596, dated April 15, 2003, states in pertinent part, the following:
Products for this purpose based on different proportions of magnesium and calcium oxide are discussed in the steelmaking literature. Technical information from the importer and elsewhere indicates that the major ingredient, magnesium metal, is consumed by chemical reaction with the sulfur and oxygen in molten iron as well as by loss through vaporization. This product is called a desulfurization 'reagent' because it reacts with and removes sulfur from molten steel . . . . We do not find such products referred to as "reaction accelerators."
The merchandise was entered in May of 2001. Two entries liquidated on April 5, 2002, and one entry liquidated on April 12, 2002, under subheading 3824.90.90, HTSUS, the provision for “[p]repared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included; residual products of the chemical or allied industries, not elsewhere specified or included; [o]ther; [o]ther; [o]ther.” The protest was timely filed on July 3, 2002.
Protestant claims classification under subheading 3815.90.50, HTSUS, the provision for "[r]eaction initiators, reaction accelerators and catalytic preparations, not elsewhere specified or included: [o]ther: [o]ther.”
ISSUE:
Is a Magnesium Desulfurization Reagent used in steel production classifiable as a "reaction accelerator" in heading 3815, HTSUS?
LAW AND ANALYSIS:
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.
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 HTSUS headings under consideration are as follows:
3815 Reaction initiators, reaction accelerators and catalytic preparations, not elsewhere specified or included:
3824: Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included; residual products of the chemical or allied industries, not elsewhere specified or included
EN 38.15 states, in pertinent part, the following:
This heading covers preparations which initiate or accelerate certain chemical processes. Products which retard these processes are not included.
These preparations fall broadly into two groups.
(a) Those of the first group are, in general, composed either of one or more active substances deposited on a support (known as “supported catalysts”) or of mixtures with a basis of active substances. In the majority of cases, these active substances are certain metals, metallic oxides, other metallic compounds or mixtures thereof. The metals most frequently used as such or as compounds are cobalt, nickel, palladium, platinum, molybdenum, chromium, copper or zinc. The support, sometimes activated, generally consists of alumina, carbon, silica gel, siliceous fossil meal or ceramic materials. Examples of “supported catalysts” are supported Ziegler or Ziegler-Natta types.
(b) Those of the second group are mixtures with a basis of compounds whose nature and proportions vary according to the chemical reaction to be catalysed. These preparations include:
(i) “free radical catalysts” (e.g., organic solutions of organic peroxides or of azo compounds, redox mixtures);
(ii) “ionic catalysts” (e.g., alkyllithium);
(iii) “catalysts for polycondensation reactions” (e.g., mixtures of calcium acetate with antimony trioxide).
The preparations of the second group are generally used in the course of manufacture of polymers.
The term "reagent" is defined as "the compound that supplies the molecule, ion, or free radical which is arbitrarily considered as the attacking species in a chemical reaction." Parker, Sybil P., ed., McGraw-Hill Dictionary of Scientific and Technical Terms, Fifth Edition, 1660 (McGraw-Hill, Inc., 1994). The term "catalyst" is defined as a "substance that alters the velocity of a chemical reaction and may be recovered essentially unaltered in form and amount at the end of the reaction." Id. at 324.
Protestant submitted a paper entitled “Hot Metal Desulfurization by CaO-Mg Co-Injection in Usiminas Steel Shop 2,” Viana, Costa, Prenazzi and Lee, 1999 Steelmaking Conference Proceedings, which concludes that “Mg [magnesium] acts as an antioxidant” rather than as a desulfurization agent. “There are strong indications that a major part of the desulfurization occurs through the reaction of S [sulfur] with Ca [calcium] and not with Mg.” Id. at 369. The paper recognizes that a majority of literature on the subject recognizes magnesium as the chemical responsible for desulfurization. Id. at 368. However, the paper posits that the magnesium bonds with free oxygen in the hot metal thus creating a deoxidized state. This state causes the calcium oxide (lime) to dissolve leaving the calcium free to bond with the sulfur in the hot metal. This calcium sulfate is removed thereby desulfurizing the steel. Id.
Protestant claims that the magnesium desulfurization reagent acts as a reaction accelerator of heading 3815. To support its view, protestant relies heavily on the Viana, Costa, Prenazzi and Lee paper cited above. We disagree with protestants analysis of the conclusions in this paper.
First, the paper recognizes that previous analyses of the use of magnesium in steel processing concluded that magnesium does desulfurize the steel. The product is called a desulfurization reagent and is used within the industry to desulfurize steel. Second, the paper states that the magnesium does not actually desulfurize the steel but rather antioxidizes the environment such that the calcium can desulfurize the steel. The instant reagent is thus consumed in the reaction.
The ENs give examples of reaction initiators and accelerators that are classified in heading 3815. The instant product is unlike these examples in many respects. It is not an active substance deposited on a support. It does not consist of cobalt, nickel, palladium, platinum, molybdenum, chromium, copper or zinc. The instant merchandise does not perform as a catalyst because it can not be recovered unaltered in form and amount after the reaction. It is not used in the course of manufacture of polymers. It is unlike products called "accelerators" found on the Internet which decrease the cure times for synthetic bonding agents by catalysis. Rather, it is aptly named a “reagent” because it facilitates a chemical reaction by becoming part of that reaction. As such, the instant merchandise is not described by the terms of heading 3815.
HOLDING:
The protest should be DENIED. Magnesium desulfurization reagent is classified in subheading 3824.90.90, HTSUS, the provision for "[p]repared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included; residual products of the chemical or allied industries, not elsewhere specified or included; [o]ther; [o]ther; [o]ther.”
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.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division