CLA-2 OT:RR:CTF:TCM H026004ARM
Port Director
U.S. Customs and Border Protection
9915 Bryn Mawr Rosemont, IL 60018
Re: Protest and Application for Further Review No. 3901-08-100369; Perfluorochemicals (CAS # 86508-42-1 and CAS # 382-28-5)
Dear Port Director:
The following is our decision regarding Protest No. 3901-08-100369, timely filed on March 6, 2008, regarding classification of Perfluorochemicals (CAS # 86508-42-1 and CAS # 382-28-5) under the Harmonized Tariff Schedule of the United States (HTSUS). We have considered comments by the importer and its counsel, made in a conference call on December 4, 2008, with a member of my staff, a National Import Specialist, and an Assistant Laboraty Director of the New York CBP Laboratory.
FACTS:
The protest describes fifteen entries of Perfluorochemicals, assigned a general CAS registry no. of 86508-42-1 or 382-28-5 , entered from November 2, 2006, through May 12, 2007, under subheading 3824.90.92, HTSUS, which provides for other chemical preparations. CBP liquidated the entries from September 14, 2007, through December 21, 2007, in subheading 3824.90.55, HTSUS, as mixtures of halogenated hydrocarbons.
The merchandise consists of perfluoroalkylamines, perfluoroalkylmorpholines, perfluoroalkanes, and perfluoroethers, all used for testing fluid or heat transfer fluid for electronics.
The perfluoroalkylamines are identified as FC-3283, FC-40, FC-43, FC-70, and PF-5058 and are all assigned CAS no. 86508-42-1. FC-3283 is a mixture of 6 perfluoro compounds (4 fluorinated tertiary amines, 1 fluorinated pyrrolidine ring, and 1 fluorinated piperidine ring. The compounds range from 9 to 12 carbons in size. FC-40 is a mixture of 5 linear perfluoro amines. The compounds range from C9 to C12 in size. No chlorinated carbons are present in the mixture. FC-43 is a mixture of 5 perfluoro tertiary butyl amines. The compounds range from C9 to C12 in size. The two major components are isomers of each other. The remaining 3 tertiary butyl amines comprise less than 1%. FC-70 is a mixture of perfluorotriamylamine isomers with 5% other trialkyl amines. PF-5058 is a mixture of perfluoro amines.
The perfluoroalkylmorpholines are identified as FC-3284 and PF-5052. FC-3284 and PF-5052 (CAS 382-28-5, chemical name: Morpholine, 2,2,3,3,5,5,6,6-octafluoro-4-(trifluoromethyl)) is a perfluoromethylmorpholine where the hydrogens have been replaced with fluorines. The morpholine is a nonaromatic heterocyclic ring system containing nitrogen and oxygen heteroatoms.
The perfluoroalkanes are identified as FC-84, and PF-5070, all assigned the generic CAS no. 86508-42-1. FC-84 is composed of isomers of perfluorohexane. FC-5070 is composed of perfluoroheptane isomers.
The perfluoroethers are identified as FC-77, PF-5080, and FC-75 and all are assigned CAS 86508-42-1. FC-77 is a mixture of perfluoro furans, a perfluoro pyran (oxygen heterocyclic compounds) with a perfluoro acyclic hydrocarbon. PF-5080 is a mixture of perfluoro furans, a perfluoro pyran (oxygen heterocyclic compounds) with a perfluoro acyclic hydrocarbon. FC-75 is a mixture of perfluoro furans, a perfluoro pyran (oxygen heterocyclic compounds) with a perfluoro acyclic hydrocarbon.
ISSUE:
Whether the specific perfluorochemicals with different molecular structures are classified in provisions of chapter 29, HTSUS, as separate identifiable chemical compounds, or in heading 3824, HTSUS, as mixtures of chemical compounds?
LAW AND ANALYSIS:
The matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry for entries made on or after November 2, 2006. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 3901-08-100369 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed involves specific factual and legal questions that have not been the subject of a Headquarters ruling or court decision. Whether different chemical compound mixtures, assigned one of two general CAS numbers, consisting in some cases of mixtures of isomers of the same compound and in other cases, mixtures of different compounds, are all classified as other chemical mixtures in heading 3824, HTSUS.
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.
The HTSUS headings under consideration are the following:
2903 Halogenated derivatives of hydrocarbons:
Fluorinated, brominated or iodinated derivatives of acyclic hydrocarbons:
2903.39 Other:
2903.39.20 Other. . . .
* * * * *
2921 Amine-function compounds:
Acyclic monoamines and their derivatives; salts thereof:
Other:
Other. . . .
* * * * *
2934 Nucleic acids and their salts, whether or not chemically defined; other heterocyclic compounds:
Other:
2934.99 Other:
Aromatic or modified aromatic:
Other:
2934.99.90 Other:
* * * * *
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:
Other:
Other:
Other:
Mixtures of halogenated hydrocarbons:
Other . . . .
* * * *
Other . . . .
* * * * *
Chapter 29, Note 1 states, in pertinent part, the following:
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;
(b) Mixtures of two or more isomers of the same organic compound (whether or not containing impurities), except mixtures of acyclic
hydrocarbon isomers (other than stereoisomers), whether or not saturated (chapter 27);
In interpreting 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 HTSUSA. See, T.D. 89 80, 54 Fed. Reg. 35127 (August 23, 1989).
The Explanatory Notes to chapter 29 state, in pertinent part, the following: 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.
It should be noted, however, that such substances are not in all cases regarded as "impurities" permitted under Note 1(a). When such substances are deliberately left in the product with a view to rendering it particularly suitable for specific use rather than for general use, they are not regarded as permissible impurities. For example, a product consisting of methyl acetate with methanol deliberately left in with a view to improving its suitability as a solvent is excluded (heading 38.14). . .
EN 29.03 states that “These are compounds obtained by the substitution in the structural formula of a hydrocarbon of one or more halogen atoms (fluorine, chlorine, bromine, iodine) for an equal number of hydrogen atoms”.
The relevant portion of heading 3824, HTSUS, referring to chemical products and preparations, can only be used to classify a mixture of natural products as such if the product is not provided for in another heading of the HTSUS. Therefore, if the merchandise is described by the terms of the relevant headings in Chapter 29, HTSUS, then heading 3824, HTSUS, cannot be considered. Headings in Chapter 29 cover separate chemically defined organic compounds whether or not containing impurities, or mixtures of two or more isomers of the same organic compound, whether or not containing impurities. While all of the compounds in the protested entries were entered as chemical preparations of heading 3824, HTSUS, and given one of two CAS numbers, CBP laboratory reports confirm that some of the mixtures of compounds contain isomers of the same organic compound or are, in fact, separate chemically defined organic compounds, with impurities left from the starting material, that do not alter the use of the good.
FC-84 is an isomer of perfluoroalkanes consisting of carbon and fluorine. FC-5070 is composed of isomers of perfluoroheptane. Both FC-84 and FC-5070 are composed of compounds in which fluorine has been substituted for an equal number of hydrogen atoms in an alkane. Alkanes are hydrocarbons, consisting of single bonded hydrogen and carbon, and no rings (acyclic). Therefore, perfluoroalkane and perfluoroheptane are fluorinated derivatives of acyclic hydrocarbons. As explained above, Chapter 29, Note 1(b), allows such mixtures of isomers to be classified in the chapter. Therefore, these substances are classified in heading 2903, HTSUS, specifically in subheading 2903.39.20, HTSUS, which provides for: “Fluorinated, brominated or iodinated derivatives of acyclic hydrocarbons: Other.”
FC-43 is a mixture of 5 perfluoro tertiary butyl amines. The compounds range from C9 to C12 in size. The two major components are isomers of each other. The remaining 3 tertiary butyl amines comprise less than 1% of the compound and constitute by-products of the manufacturing process. FC-70 is a mixture of perfluorotriamylamine isomers with 5% other trialkyl amines which are by-products of the manufacturing process. FC-3283 is a mixture of 6 perfluoro compounds , namely 4 fluorinated tertiary amines, 1 fluorinated pyrrolidine ring, and 1 fluorinated piperidine ring said to contain 93% isomers of a perfluoro compound with the remainder being by-products of the manufacturing process. The compounds range from C9 to C12 in size. Halogenated hydrocarbons are compounds that contain carbon, hydrogen and one or more halogens (Cl, F, I, Br) only. Because FC-3283 contains nitrogen, which makes it an amine, it is not a halogenated hydrocarbon.
Although the substances are mixtures, they are 93% or more mixtures of isomers of a separate chemically defined organic compound other than acyclic hydrocarbon isomers, namely acyclic monoamines. There is no evidence to conclude that the 3 tertiary butyl amines, the trialkyl amines or other by-products are deliberately left in to render the product particularly suitable for specific use. Hence, the impurities are permissible under note 1(b) to chapter 29. Accordingly, these compounds are classified in heading 2921, HTSUS.
Both FC-3284 and PF-5052 consist of a perfluoromethylmorpholine with a nonaromatic ring system containing nitrogen and oxygen heteroatoms. The hydrogens have been replaced with fluorines. As such, this chemical compound is a separate chemically defined organic compound containing oxygen and nitrogen hetero-atoms in the ring structure, of heading 2934.
FC-75 is a mixture of perfluoro furans, a perfluoro pyran (oxygen heterocyclic compounds) with a perfluoro acyclic hydrocarbon. FC-77 is identical to the compound identified as FC-77 Fluorinert (CAS 86508-42-1) that is the subject of New York (NY) Ruling letter B89965, dated January 7, 1998, classifying the substance as a mixture of halogenated hydrocarbons in subheading 3824.90.47, (now 3824.90.55), HTSUS. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), ), a notice and proposed Headquarter’s Ruling Letter (HQ) H058796 was published in the CUSTOMS BULLETIN, Volume 43, No. 28, on July 17, 2009, proposing to revoke NY B89965. As explained in that ruling, FC-77 is a mixture of perfluoro furans, a perfluoro pyran (oxygen heterocyclic compounds) with a perfluoro acyclic hydrocarbon. PF-5080 is a mixture of perfluoro furans, a perfluoro pyran (oxygen heterocyclic compounds) with a perfluoro acyclic hydrocarbon. PF-5058 is a mixture of perfluoro amines. FC-40 is a mixture of 5 linear perfluoro amines. The compounds range from C9 to C12 in size.
All of these substances are other non-aromatic chemical mixtures of furans, pyrans and acyclic hydrocarbons and as such, are not separately defined chemical compounds. They are correctly classified as entered in heading 3824, HTSUS, as chemical preparations.
HOLDING:
The classification of FC-84, and FC-5070 is in heading 2903, HTSUS, specifically in subheading 2903.39.20, HTSUS, which provides for: “Fluorinated, brominated or iodinated derivatives of acyclic hydrocarbons: Other.” The 2007 general column one duty rate is 3.7% ad valorem.
The classification of FC-43, FC-70, and FC-3283, is in heading 2921, HTSUS, specifically subheading 2921.19.60, HTSUS, which provides for: “Amine function compounds: Acyclic monoamines and their derivatives; salts thereof: Other: Other.” The 2007 column one general rate of duty is 6.5% ad valorem.
The classification of FC-3284 and PF-5052 is in heading 2934, specifically subheading 2934.99.90, HTSUS, which provides for: “Other heterocyclic compounds: Other: Other: Other: Other: Other.” The 2007 column one general rate of duty is 6.5% ad valorem.
The classification of FC-75, PF-5058, FC 5080 and FC-40 is in heading 3824, HTSUS, as chemical preparations. Specifically, they are classified in subheading 3824.90.92, HTSUS, which provides for: “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: Other: Other: Other: Other.” The 2007 column one general rate of duty is 5% ad valorem.
As an advisory note, the correct classification of FC-77 is also subheading 3824.90.92, HTSUS. However, as the entries occurred before the final revocation of NY B89965, you are instructed to reliquidate entries of FC-77 covered by the Protest in accordance with NY B89965. Furthermore, you are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a net duty reduction and partial allowance. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP 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, Director
Commercial and Trade Facilitation Division