CLA-2 OT:RR:CTF:TCM H103963 DAC
U.S. Customs and Border Protection
Port Director
Attn: Maria Jackson
Port of Memphis
3150 Tchulahoma Road
Memphis, TN 38118
RE: Application for Further Review of Protest No. 2006-10-100179; Classification of a Catalyst-coated Carbon-electrode Membrane (CCM).
Dear Port Director,
This is our decision regarding the Application for Further Review (AFR) of Protest No. 2006-10-100179, filed March 4, 2010, on behalf of protestant, W.L. Gore & Associates, Inc. (“Gore”), against U.S. Customs and Border Protection’s (CBP) classification of twenty-five entries of a catalyst-coated carbon-electrode membrane (“CCM”), under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The subject merchandise is identified by the protestant as PRIMEA 5510. The article is specifically designed for particular fuel cell applications. The subject merchandise consists of a platinum-catalyst-coated carbon-electrode membrane electrode assembly. The CCM consists of an ionomer and platinum catalyst deposited on carbon particles. The subject merchandise is imported to make a catalyst Membrane Electrode Assembly (MEA).
An MEA is part of a Proton Exchange Membrane (PEM) fuel cells. PEMs consist of assembled stacks of MEAs. The MEA contains two catalyst-coated carbon-electrode membranes (CCMs) separated by a proton permeable ionomer membrane that allows the passage of protons and forces the electrons around a conductive path creating an electrical circuit.
The instant protest covers twenty-five entries between January 14, 2009, and April 17, 2009, under subheading 3921.19.00, HTSUS, which provides for: “Other plates, sheets, film, foil and strip, of plastics: Cellular: Of other plastics”.
A Request for Information (CF 28), dated March 4, 2009, was issued by an Import Specialist at the port, regarding the entry made on February 13, 2009, requesting a sample of the subject merchandise.
CBP classified the subject merchandise under subheading 3801.90.00, HTSUS, as “Artificial graphite; colloidal or semi-colloidal graphite; preparations based on graphite or other carbon in the form of pastes, blocks, plates or other semimanufactures: Other”. The instant protest requests classification under subheading 3815.12.00, HTSUS, which provides for “Reaction initiators, reaction accelerators and catalytic preparations, not elsewhere specified or included: Supported catalysts: With precious metal or precious metal compounds as the active substance”.
The CBP Laboratory and Scientific Services (LSS) has examined the subject merchandise and reported its analysis in a memorandum dated December 22, 2010.
ISSUE:
Whether the subject merchandise is classified under heading 3801, HTSUS, as “Artificial graphite; colloidal or semi-colloidal graphite; preparations based on graphite or other carbon in the form of pastes, blocks, plates or other semimanufactures”, or under heading 3815, HTSUS, as “Reaction initiators, reaction accelerators and catalytic preparations, not elsewhere specified or included: Supported catalysts”.
LAW AND ANALYSIS:
Initially we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest, regarding twenty-four of the twenty-five enumerated entries, was timely filed on March 4, 2010, within 180 days of the above referenced liquidations, pursuant to 19 U.S.C. §1514(c)(3). The protest, regarding one of the twenty-five enumerated entries, was not timely filed within 180 days of the above listed liquidation, pursuant to 19 U.S.C. §1514(c)(3).
Further review is justified pursuant to Section 174.24(b) of the CBP Regulations (19 C.F.R. § 174.24(b)), which, “[i]s alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts”. Protestant specifically claims review is justified for determining the classification of merchandise which has not been previously classified, the PRIMEA 5510, a CCM.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The relevant 2009, HTSUS headings under consideration are as follows:
3801 Artificial graphite; colloidal or semi-colloidal graphite; preparations based on graphite or other carbon in the form of pastes, blocks, plates or other semimanufactures:
3801.90.00 Other
* * * * *
3815 Reaction initiators, reaction accelerators and catalytic preparations, not elsewhere specified or included:
Supported catalysts:
3815.12.00 With precious metal or precious metal compounds as the active substance
* * * * *
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 international interpretation of the HTSUS. See T.D. 89 80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The relevant EN for the heading 38.01 provides in pertinent part:
(3) Preparations based on graphite or other carbon in the form of pastes,
blocks, plates or other semi manufactures.
(a) “Carbon” blocks, plates, bars and similar semi manufactures of
metallo-graphitic or other grades.
These terms cover a group of semi manufactures such as blocks, plates, etc., of the kind used to make “carbon” brushes for electrical or electrotechnical machinery or appliances, …
* * * * *
The relevant EN for the heading 38.15 provides in pertinent part:
This heading covers preparations which initiate or accelerate certain chemical processes.
* * * * *
The CBP LSS examination determined that the carbonaceous material in the subject merchandise consists of carbon-black, not graphite, and that the carbon-black is not intended for further processing, and no further change occurs to the carbonaceous material within the United States. Neither is the subject merchandise used to make carbon brushes or other items of EN 38.01. Hence, the carbon based preparation here cannot be considered a semi-manufacture of heading 3801, HTSUS.
The CBP LSS memorandum states, in pertinent part, the following:
The catalyst in this case is the platinum, which “speeds up” the reaction of oxygen and hydrogen. Specifically, the catalyst, when actings as the anode and coming into contact with hydrogen gas (H2), will split the molecule into two H+ ions (protons) and two electrons (e-). Alternatively, the catalyst, when acting as the cathode and coming into contact with oxygen gas (O2), will catalyze the formation of two oxygen ions (O2-). The protons (H+) generated at the anode will react with the oxygen to form water (H2O). While the process of hydrogen gas and oxygen gas converting to water is thermodynamically favourable, the process is slow and requires acceleration, or catalyzation, which the platinum provides.
As imported, the platinum-carbon-ionomer material is already in active form as a catalyst electrode. The PRIMEA 5510 incorporates a catalyst, supported on the carbon ionomer backing to enhance its function as an electrode and increase the speed of the electrochemical reaction. Therefore, the merchandise is described by the terms of heading 3815, HTSUS, as a “catalytic preparation” at GRI 1.
Additionally, the subject merchandise is specifically provided for under subheading 3815.12.00, HTSUS, as “Reaction initiators, reaction accelerators and catalytic preparations, not elsewhere specified or included: Supported catalysts: With precious metal or precious metal compounds as the active substance”. (See also New York Ruling (NY) G83175, dated January 18, 2001 which classified motor vehicle emission control catalysts, specifically palladium and aluminum oxide catalysts, under subheading 3815.12.00, HTSUS).
HOLDING:
By application of GRI 1, the subject merchandise is classified under subheading 3815.12.00, HTSUS, as “Reaction initiators, reaction accelerators and catalytic preparations, not elsewhere specified or included: Supported catalysts: With precious metal or precious metal compounds as the active substance”. The column one, general rate of duty for merchandise of heading 3815.12.00, HTSUS (2009), at the time of entry was Free.
The protest should be granted in full, with respect to all of the timely filed protests. 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 in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP 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 and Trade Facilitation Division