• HQ H200498
• Feb 11, 2021

• Type : Classification • HTSUS : 3204.11.35; 3204.12.45; 3204.15.40; 3204.16.30
•  Related:   952891; 958436   

CLA-2 OT:RR:CTF:TCM H200498 JPJ/CKG

Port Director
Port of Charleston
U.S. Customs and Border Protection
200 East Bay Street
Charleston, SC 29401

RE: Protest and Application for Further Review; Protest No. 1601-11-100298; Classification of Preparations Based on Mixtures of Disperse, Reactive, Acid and Vat Dyes; Temporary Duty Suspensions under heading 9902, HTSUS

Dear Port Director:

This is our decision regarding the Application for Further Review (“AFR”) of Protest No. 1601-11-100298, timely filed on behalf of DyStar L.P., (“Dystar”), concerning the classification of preparations based on mixtures of disperse, reactive, acid and vat dyes under the Harmonized Tariff Schedule of the United States (“HTSUS”).

On November 1, 2012, a telephone conference was held between counsel for the Protestant and a member of my staff. On November 14, 2013, a meeting was held at CBP Headquarters with members of my staff. At the meeting, Protestant was granted additional time to supplement its treatment claim. On April 17, 2014, its supplemental submission on the treatment claim was received. On May 23, 2014, Protestant was granted additional time to supplement its supplemental submission on the treatment claim. An additional telephone conference was held on August 15, 2020, followed by an additional supplemental submission from the protestant on September 4, 2020, which we have also reviewed.

The treatment claim caused CBP to lose jurisdiction pending the outcome of Am. Fiber & Finishing, Inc. v. United States, 121 F. Supp. 3d 1273, 1287 (Ct. Int'l Trade 2015). The subsequent court decision is discussed herein. FACTS:

The merchandise at issue is preparations based on mixtures of disperse, reactive, acid and vat dyes. Protestant is a supplier for the textile, leather, and chemical industries. It obtained temporary duty suspensions under heading 9902, HTSUS, for single dyes that it imports, but not for the preparations.

Protestant classified the preparations according to the single dye component with the highest percentage concentration by weight within the preparation. It concluded that the single dye component with the highest percentage concentration by weight within each preparation imparted the essential character of the preparation in accordance with GRI 3(b). In all cases, it excluded the percentage concentration by weight of the dispersing agents, other adjuvents, and water within each of the preparations from its essential character analysis, even when these represented greater than 51% of the preparation’s product formulation. When a temporary duty suspension under heading 9902, HTSUS, was found to correspond to the individual dye component imparting the essential character of the preparation, a claim of duty free treatment was made at the time of entry.

The merchandise at issue in Protest No. 1601-11-100298 includes the following preparations based on mixtures of disperse, acid, reactive, and vat dyes:

Red Disperse Dye Mixture

This is a red disperse dye mixture consisting of the following 2 disperse dyes, dispersing agents, other adjuvents and water: Disperse Red 73 (CAS 16889-10-4), and Disperse Violet 94 (CAS 70609-95-9). The mixture does not have a CAS number.

Disperse Red 73 (CAS 16889-10-4) is the dye component with the highest percentage concentration within the mixture. Disperse Red 73 (CAS 16889-10-4) comprises over 30% of the mixture by weight. Disperse Red 73 is specifically provided for in subheading 3204.11.10, HTSUS. The mixture was entered under subheading 3204.11.10, HTSUS, in accordance with the classification of Disperse Red 73 (CAS 16889-10-4), and with a claim of duty free treatment under subheading 9902.03.57, HTSUS.

Turquoise Blue Disperse Dye Mixture

This is a turquoise blue disperse dye mixture consisting of the following 2 disperse dyes, dispersing agents, other adjuvents and water: Disperse Blue 60 (CAS 12217-80-0) and Disperse Blue S160441 (CAS 157362-53-2). The mixture does not have a CAS number.

Disperse Blue 60 (CAS 12217-80-0) is the dye component with the highest percentage concentration within the mixture. Disperse Blue 60 (CAS 12217-80-0) comprises over 30% of the mixture by weight. CAS 12217-80-0 for Disperse Blue 60 is listed in the Chemical Appendix. The CAS number for Disperse Blue S160441 is not listed in the Chemical Appendix. The mixture was entered under subheading 3204.11.50, in accordance with the classification of Disperse Blue 60 (CAS 12217-80-0), and with a claim of duty free treatment under subheading 9902.03.50, HTSUS.

Yellow Disperse Dye Mixture

This is a yellow disperse dye mixture consisting of the following 2 disperse dyes, dispersing agents, other adjuvents and water: Disperse Yellow 64 (CAS 10319-14-9) and Disperse Yellow 114 (CAS 59312-61-7). The mixture does not have a CAS number.

Disperse Yellow 64 (CAS 10319-14-9) is the dye component with the highest percentage concentration within the mixture. Disperse Yellow 64 (CAS 10319-14-9) comprises over 15% of the mixture by weight. CAS 10319-14-9 for Disperse Yellow 64 is listed in the Chemical Appendix. The CAS number for Disperse Yellow 114 is not listed in the Chemical Appendix. The mixture was entered under subheading 3204.11.50, in accordance with the classification of Disperse Yellow 64 (CAS 10319-14-9), and with a claim of duty free treatment under subheading 9902.03.48, HTSUS.

Acid Red Dye Mixture

This is an acid red dye mixture consisting of the following 2 acid dyes, dispersing agents, other adjuvents and water: Acid Red 414 (CAS 152287-09-7) and Acid Red 239 (CAS 75214-69-6). The mixture does not have a CAS number.

Acid Red 414 (CAS 152287-09-7) is the dye component with the highest percentage concentration within the mixture. Acid Red 414 (CAS 152287-09-7) comprises over 30% of the mixture by weight. Neither CAS number is listed in the Chemical Appendix. The mixture was entered under subheading 3204.12.45, in accordance with the classification of Acid Red 414 (CAS 152287-09-7), and with a claim of duty free treatment under subheading 9902.24.86, HTSUS.

Black Reactive Dye Mixtures (Reactive Black A) (two formulations)

This is a black reactive dye mixture consisting of the following 3 reactive dyes, dispersing agents, other adjuvents and water: Reactive Black 5 (CAS 17095-24-8), Reactive Yellow 201 (CAS 795275-80-8), and Reactive Orange FC970484 (CAS 250688-43-8). The mixture does not have a CAS number.

The mixture comes in two formulations. Reactive Black 5 (CAS 17095-24-8) is the dye component with the highest percentage concentration within each mixture. Reactive Black 5 (CAS 17095-24-8) comprises over 50% of the mixtures by weight. CAS 17095-24-8 for Reactive Black 5 is listed in the Chemical Appendix. None of the CAS numbers for the remaining reactive dyes is listed in the Chemical Appendix. The mixtures were entered under subheading 3204.16.50, HTSUS, in accordance with the classification of Reactive Black 5 (CAS 17095-24-8), and with a claim of duty free treatment under subheading 9902.24.91, HTSUS.

Black Vat Dye Mixture

This is a black vat dye mixture consisting of the following vat dyes, dispersing agents, other adjuvents and water: Vat Black 25 (CAS 4395-53-3) and Vat Blue 20 (CAS 116-71-2). The mixture does not have a CAS number.

Vat Black 25 (CAS 4395-53-3) is the dye component with the highest percentage concentration within the mixture. Vat Black 25 (CAS 4395-53-3) comprises over 20% of the mixture by weight. Both CAS numbers are listed in the Chemical Appendix. The mixture was entered under subheading 3204.15.80, HTSUS, in accordance with the classification of Vat Black 25 (CAS 4395-53-3), and with a claim of duty free treatment under subheading 9902.24.45, HTSUS.

The six dye mixtures at issue were entered on seven entries between November 10, 2010 and February 14, 2011. The merchandise was entered under subheadings 3204.11.10, HTSUS; 3204.11.50, HTSUS; 3204.12.45, HTSUS; 3204.15.80, HTSUS; and 3204.16.50, HTSUS. At the time of entry, Protestant also claimed duty free treatment under a temporary duty suspension of heading 9902, HTSUS.

In several Customs Form (CF) 29 Notices of Action, CBP reclassified the merchandise from subheading 3204.11.10, HTSUS, to subheading 3204.11.35, HTSUS; from subheading 3204.11.50, HTSUS, to subheading 3204.11.35, HTSUS; from subheading 3204.16.50, HTSUS, to subheading 3204.16.30, HTSUS; and from subheading 3204.15.80, HTSUS to subheading 3204.15.40, HTSUS, as applicable, rate-advanced the entries, and denied duty free treatment under heading 9902, HTSUS. CBP did not reclassify the merchandise entered under subheading 3204.12.45, HTSUS, but denied the duty free treatment claims made under a temporary duty suspension.

ISSUE:

What is the classification of preparations based on mixtures of disperse, reactive, acid and vat dyes?

Are the preparations eligible for duty free treatment under a temporary duty provision of heading 9902, HTSUS?

LAW AND ANALYSIS:

Initially, we note that 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 entries at issue. (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 Nos. 1601-11-100309, 1601-11-100298, and 1601-11-100317, is properly warranted pursuant to 19 C.F.R. § 174.24(a) as the decisions protested are alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee. Specifically, the Protestant argues that the Port’s liquidation of the subject merchandise is inconsistent with HQ 952891, dated April 19, 1993, which classified a dye mixture pursuant to GRI 3(b).

I. 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 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 1 through 5.

The HTSUS (2010 and 2011) provisions under consideration are the following:

3204 Synthetic organic coloring matter, whether or not chemically defined; preparations as specified in note 3 to this chapter based on synthetic organic coloring matter; synthetic organic products of a kind used as fluorescent brightening agents or as luminophores, whether or not chemically defined:

Synthetic organic coloring matter and preparations based thereon as specified in note 3 to this chapter:

Disperse dyes and preparations based thereon:

Other:

3204.11.35 Products described in Additional U.S. note 3 to section VI…

3204.11.50 Other…

* * * 3204.12 Acid dyes, whether or not premetalized, and preparations based thereon; mordant dyes and preparations based thereon:

Other:

3204.12.45 Products described in Additional U.S. note 3 to section VI…

3204.12.50 Other…

* * *

3204.15 Vat dyes (including those usable in that state as pigments) and preparations based thereon: Other: 3204.15.40 Products described in Additional U.S. note 3 to section VI…

3204.15.80 Other…

* * *

3204.16 Reactive dyes and preparations based thereon:

Other: 3204.16.30 Products described in Additional U.S. note 3 to section VI…

3204.16.50 Other…

* * *

Heading 9902, HTSUS, deals with a wide variety of goods which have a temporary reduction in their rate of duty by virtue of legislative action. At issue herein are the following:

9902.01.33 Anthra[2,1,9-mna]naphth[2,3-h]acridine-5,10,15(16H)-trione, 3-[(9,10-dihydro-9,10-dioxo-1-anthracenyl)amino]- (Vat black 25) (CAS No. 4395–53–3) (provided for in subheading 3204.15.80) .

9902.03.48 Disperse yellow 64 (2-(4-bromo-3-hydroxy-2-quinolinyl)-1H-indene-1,3(2H)-dione) (CAS No. 10319–14–9) (provided for in subheading 3204.11.50)

9902.03.50 Disperse blue 60 (4,11-diamino-2-(3-methoxypropyl)-1H-naphth(2,3-f)isoindole-1,3,5,10(2H)-tetrone) (CAS No. 12217–80–0) (provided for in subheading 3204.11.50) .

9902.03.57: Disperse red 73 (2-[[4-[(2-cyanoethyl)ethylamino]phenyl]azo]-5-nitro-benzonitrile) (CAS No. 16889–10–4) (provided for in subheading 3204.11.10) .

9902.24.86 Acid Red 414 (CAS No. 152287-09-7) (provided for in subheading 3204.12.45) .

9902.24.91 Reactive Black 5 (CAS No. 17095-24-8) (provided for in subheading 3204.16.50)

Note 3 to Chapter 32 provides:

3. Headings 3203, 3204, 3205 and 3206 apply also to preparations based on coloring matter (including, in the case of heading 3206, coloring pigments of heading 2530 or chapter 28, metal flakes and metal powders), of a kind used for coloring any material or used as ingredients in the manufacture of coloring preparations. The headings do not apply, however, to pigments dispersed in nonaqueous media, in liquid or paste form, of a kind used in the manufacture of paints, including enamels (heading 3212), or to other preparations of heading 3207, 3208, 3209, 3210, 3212, 3213 or 3215.

Additional U.S. note 3 to section VI, HTSUS, states as follows:

The term “products described in additional U.S. note 3 to section VI” refers to any product not listed in the Chemical Appendix to the Tariff Schedule and—

(a) For which the importer furnishes the Chemical Abstracts Service (C.A.S.) registry number and certifies that such registry number is not listed in the Chemical Appendix to the Tariff Schedule; or

(b) Which the importer certifies not to have a C.A.S. registry number and not to be listed in the Chemical Appendix to the Tariff Schedule, either under the name used to make Customs entry or under any other name by which it may be known.

The Chemical Appendix Note 1 to the HTSUS states the following:

This appendix enumerates those chemicals and products which the President has determined were imported into the United States before January 1, 1978, or were produced in the United States before May 1, 1978. For convenience, the listed articles are described (1) by reference to their registry number with the Chemical Abstracts Service (C.A.S.) of the American Chemical Society, where available, or (2) by reference to their common chemical name or trade name where the C.A.S. registry number is not available. For the purpose of the tariff schedule, any reference to a product provided for in this appendix includes such products listed herein, by whatever name known.

The ENs to heading 32.04 state, in relevant part:

Subheading Explanatory Note.

Subheadings 3204.11 to 3204.19

Synthetic organic colouring matter and preparations based thereon as specified in Note 3 to this Chapter are subdivided on the basis of their application or use. The products of these subheadings are described below.

Disperse dyes are substantially water-insoluble, non-ionic dyes which are applied to hydrophobic fibres from aqueous dispersion. They are used on polyester, nylon or other polyamides, cellulose acetate or acrylic fibres and for surface-dyeing of certain thermoplastics.

Acid dyes are water-soluble anionic dyes which are applied to nylon, wool, silk, modacrylic fibres or leather.

Mordant dyes are water-soluble dyes which require the use of a mordant (for example, chromium salts) to bind them to textile fibres. Basic dyes are water-soluble cationic dyes which are applied to modacrylic, modified nylon or modified polyester fibres or to unbleached paper. Their original use was for dyeing silk, wool or tannin-mordanted cotton, where brightness of shade was more important than colour-fastness. Some basic dyes show biological activity and are used in medicine as antiseptics.

Direct dyes are water-soluble anionic dyes which, in aqueous solution in the presence of electrolytes, are substantive to cellulosic fibres. They are used for dyeing cotton, regenerated cellulose, paper, leather and, to a lesser extent, nylon. In order to improve their colour-fastness, direct-dyed fabrics are often subjected to an after treatment, such as diazotisation and coupling in situ, chelation with metal salts or treatment with formaldehyde.

Vat dyes are water-insoluble dyes which are reduced in an alkaline bath to the water-soluble leuco form and in that form are applied, mainly to cellulosic fibres, after which they are reoxidised to the insoluble coloured keto form.

Reactive dyes are dyes that attach themselves to the fibres, usually cotton, wool or nylon, by reacting with functional groups on the fibre molecules to form a covalent bond.

Pigments are synthetic organic colours which retain their crystalline or particulate form throughout the application process (in contrast to dyes, which lose their crystalline structure by dissolution or vaporisation, although they may regain it during a later stage of the dyeing process). They include insoluble metal salts of some of the above-mentioned dyes.

Subheading 3204.19 covers, inter alia :

-     mixtures described in Note 2 to this Chapter;

-     solvent dyes, which are dissolved in organic solvents and applied to synthetic fibres, for example, nylon, polyester or acrylic fibres, or used in gasoline, varnishes, stains, inks, waxes, etc.

Some of these synthetic organic colouring matters belong to two or more application classes falling in different subheadings. They are classified as follows :

-    Those which, in the state in which they are presented, are usable both as vat dyes and as pigments are to be classified as vat dyes in subheading 3204.15.

-    Others which are potentially classifiable in two or more of the specific subheadings 3204.11 to 3204.17 are to be classified in the latest applicable subheading.

-    Those which are potentially classifiable in one of the specific subheadings 3204.11 to 3204.17 and in the residual subheading 3204.19 are to be classified in the specific subheading. . . . Mixtures of synthetic organic colouring matter and preparations based on such mixtures are classified as follows:

Mixtures of two or more products of the same subheading are to be classified in that subheading.

Mixtures of two or more products of different subheadings (3204.11 to 3204.19) are to be classified in the residual subheading 3204.19. * * * There is no dispute that, pursuant to GRI 1, the merchandise is classified in heading 3204, HTSUS, as “preparations as specified in note 3 to this chapter based on synthetic organic coloring matter”. There is also no dispute that, pursuant to GRIs 1 and 6, the merchandise is classified at the six-digit level in subheadings 3204.11, HTSUS, as preparations based on disperse dies; 3204.12, HTSUS, as preparations based on acid dyes; 3204.15, HTSUS as preparations based on vat dyes; and 3204.16, HTSUS, as preparations based on reactive dyes. The dispute is at the eight-digit subheading level.

Protestant argues that the preparations based on mixtures of synthetic organic coloring matter are classified at the eight-digit subheading level pursuant to GIRs 3(b) and 6. As such, preparations based on mixtures of dyes should be classified according to the single dye with the highest concentration by weight within a preparation. It argues that the single dye with the highest concentration by weight within a preparation determines the “essential character” of the preparation under a GIR 3(b) analysis. Protestant also argues that once a preparation is classified according to the single dye with the highest concentration by weight within the preparation, the temporary duty suspensions of heading 9902, HTSUS, applicable to that single dye within the preparation also apply. Protestant concludes that a preparation based on mixtures of dyes classified according to the single dye with the highest concentration by weight within the preparation will qualify for a temporary duty suspension under heading 9902, HTSUS, applicable to that single dye.

Protestant explains that a color preparation based on more than one dye is a mixture. As dyes in a mixture are separable, they do not create a new chemical substance; the individual component dyes retain their CAS numbers. As such, the mixture is not automatically a “non-listed” preparation, i.e., a “Product described by Additional U.S. Note 3 to Section VI”. Therefore, Protestant argues that classification at the 8-digit subheading level is first based on the single dye or pigment imparting the essential character of the mixture (GRI 3(b)), and then whether that dye component is listed in the Chemical Appendix and/or specifically identified in the HTSUS.

We do not agree.

The scope of heading 3402, HTSUS, includes “preparations”. “Preparations” are specifically provided for at the heading level at GIR 1 and at the subheading level at GRIs 1 and 6. At the subheading level, pursuant to GRI 6, 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 1 through 5. Only if GRI 1 fails to classify the goods and if the headings and legal notes do not otherwise require, the remaining GRIs are applied, taken in order.

The various subheading texts at issue within heading 3204, HTSUS, provide for “preparations”. For example, at the six-digit level, the relevant subheading texts provide for “Disperse dyes…and preparations based thereon…”; “Acid dyes...and preparations based thereon…”; “Vat dyes…and preparations based thereon…”; and “Reactive dyes…and preparations based thereon…”. At the eight-digit level, the subheading texts provide for either “Products described in additional U.S. Note 3 to Section VI” (i.e., “ any product not listed in the Chemical Appendix to the Tariff Schedule”) or “Other”. The products at issue are preparations based on disperse, acid, vat, and reactive dyes. In classifying the preparations, we apply the texts of the subheadings and the text of the additional U.S. Note 3 to Section VI. Applying GRIs 1 and 6 at the subheading level, the preparations at issue are described by Additional U.S. note 3 to section VI. The preparations are “products described in additional U.S. Note 3 to section VI” because they are not listed in the Chemical Appendix to the Tariff Schedule either under the name used to make Customs entry or under any other name by which it may be known; in addition, the Protestant notes that the instant products do not have CAS registry numbers. The merchandise is therefore classifiable at the eight-digit level pursuant to GRIs 1 and 6. Resort to GRI 3 is not warranted in light of the scope of heading 3204, HTSUS, and the scope of the subheadings.

Furthermore, the EN to heading 32.04 clearly and explicitly clarifies the classification of dye mixtures at the 6-digit subheading level on the basis of GRI 1, by providing specific guidelines for the classification of such mixtures (noting that mixtures of two or more products of the same subheading are to be classified in that subheading, and mixtures of two or more products of different subheadings (3204.11 to 3204.19) are to be classified in the residual subheading 3204.19).

Protestant further argues that the preparations based on dye mixtures do not have CAS numbers because they are mixtures of various separate chemically defined compounds, and the resulting preparations are not themselves separate chemically defined compounds. Protestant cites Ciba-Geigy Corporation v. United States, 178 F.Supp.2d 1336 (CIT 2001) for the Court’s analysis of separate chemically defined compounds. However, the issue in Ciba-Geigy Corporation was whether the product constituted separately defined compounds of heading 3204, HTSUS, or ink of heading 3215, HTSUS. The product was not a preparation based on a mixture of dyes. We agree that preparations based on dye mixtures are seldom assigned CAS numbers as such. However, this is largely irrelevant to the classification of the products at issue or their duty rate. The fact that no CAS number could have been provided and thus the mixtures meet the terms of additional U.S. Note 3 to section VI, has no duty implications as between other preparations that meet the note or not, either under heading 3204 or heading 9902.

Furthermore, a mixture does not require its own, separate CAS number to be granted duty free treatment under a heading 9902 provision—it merely must be listed in a subheading under heading 9902. Indeed, several such mixtures, including mixtures of individual dyes, are specifically provided for in their own 9902 subheadings in the 2011 HTSUS. For example, subheadings 9902.01.12, 9902.01.74 and 9902.01.76 specifically provide for mixtures of individual dyes. Each individual dye in the specified mixtures is identified by its individual name and CAS number. Thus, if the intent, as Protestant claims, was to seek duty free treatment under heading 9902 for both individual dyes and the subject mixtures, the requestor erred in not seeking to specifically provide for the mixtures at issue in Chapter 99 as opposed to simply the individual dyes.

Protestant cites several CBP rulings to support its claim that a GRI 3(b) analysis is warranted here. In HQ 952891, dated April 19, 1993, the merchandise was a pigment preparation called sicoplast red 32-1720. It was described as a mixture composed of an inorganic pigment of heading 3206, HTSUS, and an organic pigment of heading 3204, HTSUS. In this case, CBP used GRI 3(b) to determine classification as between two different headings in chapter 32, HTSUS. The preparations at issue here are not comprised of inorganic and organic pigments of different headings. At issue is whether the preparations of a single heading, heading 3204, HTSUS, are “Products described in additional U.S. Note 3 to Section VI”. HQ 952891 is not helpful in that determination.

In HQ 958436, dated August 25, 1997, the merchandise at issue was three acrylic resin pigment pastes, described as water-based preparations consisting primarily of acrylic resin colored with pigments. Protestant argues that this ruling is instructive regarding the application of GRI 3(b) to mixtures of pigments. However, we note that the merchandise in that ruling states that the products are mixed “after importation”. More importantly, we note that the ruling did not classify the pastes pursuant to GRI 3, and, regarding the application of GRI 2(a), stated “[GRI 2(a)] does not normally apply to Section VI goods in view of the scope of the headings of that section”. Finally, we note that the products were classified in heading 3204, HTSUS, pursuant to GRI 1, and in subheading 3204.17.6085, HTSUSA, based on their “color”, and based on “the applicability of additional U.S. Note 3 to section VI, HTSUSA”.

Protestant also argues that Congress adopted the temporary duty suspensions under heading 9902, HTSUS, specifically for its merchandise. The suspensions were obtained and renewed twice. Protestant explains that when it first sought temporary duty suspensions for its single dyes and preparations in 2004, the suspensions provided for the single dyes, but were intended to include both the single dyes, and the preparations based on dye mixtures which would be classified according to the single dye component imparting the essential character of the preparation. Protestant argues that the temporary duty suspensions were intended to include the preparations because it was the proponent of the duty suspension bills in Congress, and it drafted and submitted the bills to Congress. Protestant further explains that the heading 9902, HTSUS, provisions were sought by Protestant under an assumption and past practice of classifying their preparations in accordance with GRI 3(b).

In addition, Protestant argues that Congress enacted the applicable heading 9902, HTSUS, provisions knowing that GRI 3(b) applied. Protestant provides a copy of a United States International Trade Commission (“ITC”) Memorandum on Proposed Tariff Legislation of the 111th Congress, which includes a copy of Senate Bill 2397 to extend the temporary suspension of duty on Chromate(2-), [2,4-dihydro-4-[[2-(hydroxy-kO)-4-nitrophenyl]azo-kN1]-5-met hyl-3H-pyrazol-3-onato(2-)-kO3][3-[[4,5-dihydro-3-methyl-1-( 4-methylphenyl)-5-(oxo-kO)-1H-pyrazol-4-yl]azo-kN1]-4-(hydroxy-kO)-5-nitrobenzenesulfonato(3-)]-, disodium. Although Protestant states that it drafted and submitted temporary duty suspension bills to Congress based on its sales data, which included preparations based on mixtures that it classified according to the single dye component imparting its essential character, the preparations based on mixtures were classified incorrectly. As such, in the absence of specific language in the texts of the heading 9902, HTSUS, provisions, we cannot discern a congressional intent to include Protestant’s preparations in the legislation as GRI 3(b) mixtures; More importantly, we find no support for Protestant’s assertion that Congress enacted the temporary duty suspension provisions intending for GRI 3(b) to be applied. Indeed, the presence of specific 9902 subheadings for specific dye mixtures is evidence to the contrary.

The merchandise is not eligible for a temporary duty suspension under heading 9902, HTSUS.

II. Treatment

Protestant’s alternative claim is that under 19 U.S.C. 1625(c) a "treatment" has been established under subheadings 3204.11.10, HTSUS; 3204.11.50, HTSUS; 3204.12.50, HTSUS; 3204.15.80, HTSUS; and 3204.16.50, HTSUS, as applicable.

Under section 625 of the Tariff Act of 1930, as amended, 19 U.S.C. §1625 (1994), a proposed interpretive ruling or decision which would modify (other than to correct a clerical error) or revoke a prior interpretive ruling or decision which has been in effect for at least 60 days, or have the effect of modifying the treatment previously accorded by the Customs Service to substantially identical transactions, must be published in the Customs Bulletin and will become effective 60 days after the date of its publication.  Section 177.12(c)(1) of the Customs Regulations (19 CFR 177.12(c)(1)) provides that the following rules will apply for purposes of determining whether a treatment was previously accorded by CBP to substantially identical transactions of a person: (i) There must be evidence to establish that: (A) There was an actual determination by a Customs officer regarding the facts and issues involved in the claimed treatment; (B) The Customs officer making the actual determination was responsible for the subject matter on which the determination was made; and

(C) Over a 2-year period immediately preceding the claim of treatment, Customs consistently applied that determination on a national basis as reflected in liquidations of entries or reconciliations or other Customs actions with respect to all or substantially all of that person's Customs transactions involving materially identical facts and issues.

Section 177(c)(1)(ii) provides that the determination of whether the requisite treatment occurred will be made on a case-by-case basis and will involve an assessment of all relevant factors. In particular, CBP will focus on past transactions to determine whether there was an examination of the merchandise by CBP or the extent to which those transactions were reviewed by CBP. Diminished weight will be given to transactions involving small quantities or values, and no weight to informal entries or transactions processed without examination or CBP officer review.

Section 177.12(c)(1)(iv) of the Customs Regulations, 19 CFR 177.12(c)(iv)), provides that "(t)he evidentiary burden as regards the existence of the previous treatment is on the person claiming the treatment." Section 177.12(c)(1)(iv), further states the following:  The evidence of previous treatment by Customs must include a list of all materially identical transactions by entry number (or other Customs assigned number), the quantity and value of merchandise covered by each transaction (where applicable), the ports of entry, the dates of final action by Customs, and, if known, the name and location of the Customs officer who made the determination on which the claimed treatment is based. In addition, in cases in which an entry is liquidated without any Customs review (for example, the entry is liquidated automatically as entered), the person claiming a previous treatment must be prepared to submit to Customs written or other appropriate evidence of the earlier actual determination of a Customs officer that the person relied on in preparing the entry and that is consistent with the liquidation of the entry.

Section 177.12(c)(iii)(C) further states that Customs will not find that a treatment was accorded to a person's transactions if the person's own transactions were not accorded the treatment in question over the 2-year period immediately preceding the claim of treatment, or if the issue in question involves the admissibility of merchandise;

The claim of treatment is made in conjunction with the protested entries of the merchandise described as preparations based on mixtures of disperse, reactive, acid and vat dyes. Pursuant to Am. Fiber & Finishing, Inc. v. United States, 121 F. Supp. 3d 1273, 1287 (Ct. Int'l Trade 2015), a claim of treatment begins on the date of the earliest affected entry (i.e., the first entry that does not receive the anticipated, relied upon treatment). The two-year period for assessing treatment is therefore the two-year period immediately preceding the date of that first affected entry, that is, September 29, 2010. In support of its treatment claim, Protestant has submitted Exhibits A and B and has supplemented its Exhibit B with an additional spreadsheet of 4000+ lines of entries. The spreadsheet includes entry numbers, entry dates, liquidation dates, entry types, port numbers, line numbers, HTS numbers, HTS descriptions, entered values and duties paid. Protestant explains that the data submitted was compiled from Importer Trade Activity Data (ITRAC) reports. In their September 4, 2020 supplement, Protestant further identifies which entries involve of mixtures of dyes identical or substantially similar to the mixtures at issue.

Protestant explains that Exhibit A is evidence of actual determinations by a Customs officer regarding the facts and issues involved in the claimed treatment. It also explains that Exhibit B and the spreadsheet are evidence that over a 2-year period immediately preceding the claim of treatment, CBP consistently applied its determination on a national basis as reflected in liquidations of entries or other Customs actions with respect to all or substantially all of its Customs transactions involving materially identical facts and issues. Exhibit A includes a list of entries that Protestant alleges were actually reviewed by a Customs officer. These entries were made from October 2010 to March 2011. However, there is no evidence of actual review of the listed entries by a Customs Officer; from the import specialist comments provided, none were comments based upon a review of the merchandise at issue in the Protest.

Protestant cites 3 specific entries. The first is an entry made at port 1601 (Charleston, SC) on September 11, 2006, and liquidated on July 27, 2007. The import specialist comments describe the product as a mixture of vat dyes, and states that one of the vat dyes “gives the colorant its character”. However, the entry was made outside the two year period immediately preceding the claim of treatment. The second is an entry made at port 2301 (Brownsville, TX) on November 21, 2007 and liquidated on October 3, 2008, involving Reactive Navy C which is at issue in Protestant’s Protest No. 1601-11-100317. The import specialist comments note that the entry was reviewed “for value, classification, and entry requirements. All compliant. However, the entry was made outside the two year period immediately preceding the claim of treatment.

The third entry cited was made at port 2301 (Brownsville, TX) on July 25, 2008, and liquidated on June 5, 2009, involving a product that is not at issue in this protest. The import specialist comments state the entry was reviewed for admissibility. It was not reviewed for classification. Pursuant to 19 C.F.R. 177.12(c)(iii)(C), CBP will not find that a treatment was accorded to a person’s transactions if the issue in question involves the admissibility of merchandise.

Exhibit B includes entry numbers, entry dates, liquidation dates, entry types, port numbers, line numbers, HTS numbers, HTS descriptions, entered values and duties paid. 106 of these entries are identified in Protestant’s September 4 supplement as involving mixtures of dyes comparable to the merchandise at issue.

Protest No. 1601-11-100298: Red Disperse Dye Mixture; Turquoise Blue Disperse Dye Mixture; Yellow Disperse Dye Mixture; Acid Red Dye Mixture; Reactive Black A (two formulations); and Black Vat Dye Mixture

The subject merchandise was entered on seven entries between November 10, 2010 and February 14, 2011. In four Customs Form (CF) 29 Notices of Action dated April 27, 2011, CBP reclassified the merchandise from subheading 3204.11.10, HTSUS, to subheading 3204.11.35, HTSUS; from subheading 3204.11.50, HTSUS, to subheading 3204.11.35, HTSUS; from subheading 3204.16.50, HTSUS, to subheading 3204.16.30, HTSUS; and from subheading 3204.15.80, HTSUS to subheading 3204.15.40, HTSUS, as applicable, rate-advanced the entries, and denied duty free treatment under heading 9902, HTSUS. CBP did not reclassify the merchandise entered under subheading 3204.12.45, HTSUS, but denied the duty free treatment claims made under a temporary duty suspension.

Pursuant to 19 CFR 177.12(c)(1)(i)(C), Protestant argues that it has provided more than two years of liquidations following actual examinations and determinations by appropriate CBP officers of substantially identical entries. Protestant has provided CBP with a spreadsheet of 4,000+ lines (first entry date May 27, 2008 and last entry date November 17, 2010) that includes, among other information, entry numbers, port numbers, commodity and descriptions, entry summary dates, entry dates, liquidation dates, entered values, HTSUS numbers, HTSUS descriptions, quantities, and units of measurement. In their September 4, 2020 supplement, Protestant further identifies those entries which involve of mixtures of dyes identical or substantially similar to the mixtures at issue.

Of the 4000+ lines of entry data submitted by the protestant, Dystar has identified 106 as involving substantially similar merchandise—i.e., mixtures of individual dyes. However, protestant offers no evidence of substantive review or actual determination for any of the subject entries, nor has CBP found any such evidence in our review of the entries identified. For example, as regards the specific merchandise at issue, CBP found as follows:

Based upon the documentation submitted by Protestant, Red Disperse Dye Mixture was entered at one CBP port of entry. It was entered at CBP port 1512 (Charlotte, NC) in 2010, with no evidence provided of actual determinations made by a Customs officer regarding the facts and issues involved in the claimed treatment. Protestant reports “0” quantity of merchandise for the entry. Over a 2-year period immediately preceding the claim of treatment, Protestant has failed to establish that CBP consistently applied its determination with respect to Red Disperse Dye Mixture on a national basis with respect to all or substantially all of the Protestant’s transactions involving materially identical facts and issues, as required by Section 177.12(c)1(i)(C), CBP Regulations.

Turquoise Blue Disperse Dye Mixture

Based upon the documentation submitted by Protestant, Turquoise Blue Disperse Dye Mixture was entered at one CBP port of entry. It was entered at CBP port 0712 (Champlain, NY) in 2010, with no evidence provided of actual determinations made by a Customs officer regarding the facts and issues involved in the claimed treatment. Protestant reports a significantly low quantity and value of the merchandise entered. Over a 2-year period immediately preceding the claim of treatment, Protestant has failed to establish that CBP consistently applied its determination with respect to Turquoise Blue Disperse Dye Mixture on a national basis with respect to all or substantially all of the Protestant’s transactions involving materially identical facts and issues, as required by Section 177.12(c)1(i)(C), CBP Regulations.

Yellow Disperse Dye Mixture

No information provided.

Based upon the documentation submitted by Protestant, over a 2-year period immediately preceding the claim of treatment, Protestant has failed to establish that CBP consistently applied its determination with respect to Yellow Disperse Dye Mixture.

Acid Red Dye Mixture

Based upon the documentation submitted by Protestant, Acid Red Dye Mixture was entered at two CBP ports of entry. It was entered on one entry at CBP port 0712 (Champlain, NY) and on 5 entries at CBP port 1601 (Charleston, SC). It was entered three times in 2008 at CBP port 1601 with no evidence provided of actual determinations made by a Customs officer regarding the facts and issues involved in the claimed treatment. It was entered three times in 2009, twice at CBP port 1601 and once at CBP port 0712, with no evidence provided of actual determinations made by a Customs officer regarding the facts and issues involved in the claimed treatment. Over a 2-year period immediately preceding the claim of treatment, Protestant has failed to establish that CBP consistently applied its determination with respect to Acid Red Dye Mixture on a national basis with respect to all or substantially all of the Protestant’s transactions involving materially identical facts and issues, as required by Section 177.12(c)1(i)(C), CBP Regulations.

Reactive Black A (two formulations)

Based upon the documentation submitted by Protestant, Reactive Black A (two formulations) was entered at two CBP ports of entry. It was entered on one entry at CBP port 5201 (Miami, FL) and ten entries at CBP port 2704 (Los Angeles/Long Beach, CA). It was entered five times in 2008, with no evidence provided of actual determinations made by a Customs officer regarding the facts and issues involved in the claimed treatment. It was entered twice in 2009, with no evidence provided of actual determinations made by a Customs officer regarding the facts and issues involved in the claimed treatment. It was entered four times in 2010, with no evidence provided of actual determinations made by a Customs officer regarding the facts and issues involved in the claimed treatment. Protestant reports “0” quantities of merchandise for each of the entries. Over a 2-year period immediately preceding the claim of treatment, Protestant has failed to establish that CBP consistently applied its determination with respect to Reactive Black A (two formulations) on a national basis with respect to all or substantially all of the Protestant’s transactions involving materially identical facts and issues, as required by Section 177.12(c)1(i)(C), CBP Regulations.

Black Vat Dye Mixture

Based upon the documentation submitted by Protestant, Black Vat Dye Mixture was entered at one CBP port of entry. It was entered at CBP port 1512 (Charlotte, NC) in 2009, with no evidence provided of actual determinations made by a Customs officer regarding the facts and issues involved in the claimed treatment. Additionally, no evidence of the liquidation date was provided. Protestant reports “0” quantity of merchandise for the entry. Over a 2-year period immediately preceding the claim of treatment, Protestant has failed to establish that CBP consistently applied its determination with respect to Black Vat Dye Mixture on a national basis with respect to all or substantially all of the Protestant’s transactions involving materially identical facts and issues, as required by Section 177.12(c)1(i)(C), CBP Regulations.

Based on the evidence submitted, Protestant has failed to substantiate its claim of treatment. Therefore, we find that no treatment was previously accorded by CBP to its entries of preparations based on mixtures of disperse, reactive, acid and vat dyes.

HOLDING: By application of GRIs 1 and 6, the subject preparations based on mixtures of disperse dyes are classified under heading 3204, HTSUS, specifically, under subheading 3204.11.35, HTSUS, HTSUS, which provides for: “Synthetic organic coloring matter, whether or not chemically defined; preparations as specified in note 3 to this chapter based on synthetic organic coloring matter; synthetic organic products of a kind used as fluorescent brightening agents or as luminophores, whether or not chemically defined: Synthetic organic coloring matter and preparations based thereon as specified in note 3 to this chapter: Disperse dyes and preparations based thereon: Other: Products described in Additional U.S. note 3 to section VI.” The general, column one, rate of duty is 6.5% ad valorem.

By application of GRIs 1 and 6, the subject preparations based on mixtures of vat dyes are classified under heading 3204, HTSUS, specifically, under subheading 3204.12.45, HTSUS, which provides for: “Synthetic organic coloring matter, whether or not chemically defined; preparations as specified in note 3 to this chapter based on synthetic organic coloring matter; synthetic organic products of a kind used as fluorescent brightening agents or as luminophores, whether or not chemically defined: Synthetic organic coloring matter and preparations based thereon as specified in note 3 to this chapter: Acid dyes, whether or not premetalized, and preparations based thereon: mordant dyes and preparations based thereon: Other: Products described in Additional U.S. note 3 to section VI.” The general, column one, rate of duty is 6.5% ad valorem.

By application of GRIs 1 and 6, the subject preparations based on mixtures of vat dyes are classified under heading 3204, HTSUS, specifically, under subheading 3204.15.40, HTSUS, which provides for: “Synthetic organic coloring matter, whether or not chemically defined; preparations as specified in note 3 to this chapter based on synthetic organic coloring matter; synthetic organic products of a kind used as fluorescent brightening agents or as luminophores, whether or not chemically defined: Synthetic organic coloring matter and preparations based thereon as specified in note 3 to this chapter: Vat dyes (including those usable in that state as pigments) and preparations based thereon: Other: Products described in Additional U.S. note 3 to section VI.” The general, column one, rate of duty is 6.5% ad valorem.

By application of GRIs 1 and 6, the subject preparations based on mixtures of reactive dyes are classified under heading 3204, HTSUS, specifically, under subheading 3204.16.30, HTSUS, which provides for: “Synthetic organic coloring matter, whether or not chemically defined; preparations as specified in note 3 to this chapter based on synthetic organic coloring matter; synthetic organic products of a kind used as fluorescent brightening agents or as luminophores, whether or not chemically defined: Synthetic organic coloring matter and preparations based thereon as specified in note 3 to this chapter: Reactive dyes and preparations based thereon: Other: Products described in Additional U.S. note 3 to section VI.” The general, column one, rate of duty is 6.5% ad valorem.

The merchandise is not eligible for a temporary duty suspension under heading 9902, HTSUS.

A treatment under 19 U.S.C. 1625(c) has not been established.

You are instructed to DENY the protest.

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 International Trade, Regulations and Rulings, 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,

Craig T. Clark, Director
Commercial and Trade Facilitation Division