CLA-2 OT:RR:CTF:TCM HQ H261313 NCD
Port Director
Service Port New York/Newark
U.S. Customs and Border Protection
1210 Corbin Street
Elizabeth, NJ 07201
Attn: Marshall Dworkis, Import Specialist
Re: Protest and Application for Further Review No. 4601-13-101258; Classification of Galaxolide® mixtures
Dear Port Director:
The following is our decision as to Protests and Application for Further Review No. 4601-13-101258, which was timely filed August 16, 2013 on behalf of International Flavors and Fragrances, Inc. (“IFF” or “Protestant”). The protest pertains to the classification of various Galaxolide® mixtures under the Harmonized Tariff Schedule of the United States (HTSUS). The subject mixtures were entered with and liquidated by U.S. Customs and Border Protection (CBP) at the Port of New York/Newark (“the Port”). Protestant asserts that CBP’s classification of the subject merchandise at liquidation is incorrect.
FACTS:
The subject merchandise consists of five different mixtures, each of which contains Galaxolide® (whose chemical formula is depicted in Figure 1 below) dissolved in a particular solvent. The specific mixtures are named according to their respective constituent solvents, and include Galaxolide® mixed with diethyl phthalate (Galaxolide® 50 DEP), dipropylene glycol (Galaxolide® 50 DPG), benzyl benzoate (Galaxolide® 50 BB), isopropyl myristate (Galaxolide® 50 IPM), and benzyl salicylate (Galaxolide® 50 BENZ SAL). As indicated by the product names, and confirmed in reports issued by a CBP laboratory, the mixtures consist 50 percent of Galaxolide® and 50 percent of the given solvent used. The laboratory reports describe Galaxolide® as a “synthetic odoriferous aromatic” used as a “fragrance industry ingredient.” They also describe isopropyl myristate as a “fixative” and each of the remaining solvents as a “fixative and diluent.”
Figure 1
The subject Galaxolide® mixtures were entered in three separate entries, on January 1, 2013, March 14, 2013, and March 19, 2013, in heading 3302, HTSUS, specifically subheading 3302.90.10, HTSUS, which provides for “Mixtures of odoriferous substances and mixtures (including alcoholic solutions) with a basis of one or more of these substances, of a kind used as raw materials in industry; other preparations based on odoriferous substances, of a kind used for the manufacture of beverages: Other: Containing no alcohol or not over 10 percent of alcohol by weight: Other.” CBP liquidated the subject merchandise on July 26, 2013 in heading 2932, HTSUS, specifically subheading 2932.99.70, HTSUS, which provides for: “Heterocyclic compounds with oxygen hetero-atom(s) only: Other: Other: Aromatic: Other: Other.” Protestant claims classification as entered.
ISSUE:
Whether the subject Galaxolide® mixtures are properly classified in heading 2932, HTSUS, as heterocyclic compounds with oxygen hetero-atom(s) only, or in heading 3302, HTSUS, as mixtures with a basis of one or more odoriferous substances, of a kind used in industry.
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 protests were timely filed, within 180 days of liquidation of the first entry. (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. 4601-13-101258 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because Protestant alleges that the decisions are inconsistent with a previous CBP decision with respect to substantially similar merchandise.
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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The 2016 HTSUS provisions under consideration in the instant case are as follows:
2932 Heterocyclic compounds with oxygen hetero-atom(s) only:
Other:
2932.99 Other:
Aromatic:
Other
2932.99.70 Other
3302 Mixtures of odoriferous substances and mixtures (including alcoholic solutions) with a basis of one or more of these substances, of a kind used as raw materials in industry; other preparations based on odoriferous substances, of a kind used for the manufacture of beverages:
3302.90 Other:
3302.90.10 Containing no alcohol or not over 10 percent of alcohol by weight:
Heading 2932, HTSUS, provides for heterocyclic compounds with oxygen hetero-atom(s) only. Note 1 to Chapter 29 provides, in pertinent part, as follows:
Except where the context requires, the headings of this chapter apply only to:
Separate chemically defined organic compounds, whether or not containing impurities;
***
Products mentioned in (a), (b) or (c) above dissolved in other solvents provided that the solution constitutes a normal and necessary method of putting up these products adopted solely for reasons of safety or for transport and that the solvent does not render the product particularly suitable for specific use rather than for general use…
With respect to Note 1(a) to Chapter 29, the General EN to Chapter 29 states as follows:
A separate chemically defined compound is a substance which consists of one molecular species (e.g., covalent or ionic) whose composition is defined by a constant ratio of elements and can be represented by a definitive structural diagram. In a crystal lattice, the molecular species corresponds to the repeating unit cell.
The provisions in the General Explanatory Note to Chapter 28 concerning the addition of stabilisers, antidusting agents and colouring substances apply, mutatis mutandis, to the chemical compounds of this Chapter.
The General EN to Chapter 28 in turn states as follows:
Such elements and compounds are excluded from Chapter 28 when they are dissolved in solvents other than water, unless the solution constitutes a normal and necessary method of putting up these products adopted solely for reasons of safety or for transport (in which case the solvent must not render the product particularly suitable for some types of use rather than for general use).
The General EN to Chapter 29 defines “separate chemically defined compound” for purposes of Note 1 as a “substance…whose composition…can be represented by a definitive structural diagram.” Pursuant to Note 1(e) to Chapter 29, as explained in the General EN to Chapter 28, such compounds may be dissolved in non-aqueous solvents needed solely for safety or for transport. However, when the solvent enables or enhances the resulting solution’s end-use, or is otherwise added for reasons other than safety or transport, the solution falls outside the scope of Note 1(e) to Chapter 29. See, e.g., Headquarters Ruling Letter (HQ) 968018, dated January 9, 2006 (determining that Bitrex dissolved in propylene glycol did not meet the terms of Note 1(e) to Chapter 29 because Bitrex “is designed for human exposure and is not harmful” and the solution “is not necessary to put up or sell the product”); and HQ 965089, dated January 31, 2002 (excluding solution from heading 2922, HTSUS, where the solvent did not “enhance the safety of transportation” but instead “aid[ed] in the manufacture of the final product”).
The products at issue consist of Galaxolide®, a heterocyclic compound represented by a distinct structural diagram, dissolved in various solvents. Like other Galaxolide® mixtures, the instant products are incorporated as active ingredients in perfumes and other fragrance products. As explained in HQ H274972, dated August 18, 2016, diethyl phthalate and isopropyl myristate are known diluents that are added to Galaxolide® for the express purpose of reducing the latter’s viscosity and rendering it in usable form for incorporation into perfumes. This description of diethyl phthalate and isopropyl myristate as diluents is confirmed by the above-mentioned CBP laboratory reports, which additionally indicate that benzyl benzoate, dipropylene glycol, and benzyl salicylate qualify as such. Moreover, according to the CBP laboratory reports, all but the isopropyl myristate qualify as a fixative, which is “a substance that prevents too rapid volatilization of the components of a perfume and tends to equalize…rates of volatization” and which “thus increases the odor life of a perfume and keeps the odor unchanged.” Richard J. Lewis, Sr., Hawley’s Condensed Chemical Dictionary 566-67 (15th ed. 2007); see also id. (characterizing diethyl phthalate as a fixative). As such, none of the additives enable or enhance the safe use or transportation of Galaxolide®, which, which can in fact be safely maintained or transported in its undiluted form. See also NY C87142, dated May 11, 1998 (classifying unmixed Galaxolide®). Instead, these additives enable fabrication of the finished perfumes and, in all but the Galaxolide® 50 IPM, extend those perfumes’ shelf lives. Consequently, none of the products at issue are covered by Note 1(e) to Chapter 29. Because the subject products do not otherwise satisfy Note 1 to Chapter 29, they are excluded from heading 2932, HTSUS.
We next consider heading 3302, HTSUS, which applies, inter alia, to mixtures with a basis in one or more odoriferous substances, of a kind used as raw materials in the industry. Chapter Note 2 to Chapter 33 states as follows:
The expression "odoriferous substances" in heading 3302 refers only to the substances of heading 3301, to odoriferous constituents isolated from those substances or to synthetic aromatics.
With respect to “aromatics,” Additional U.S. Note 2(a) to Section Note VI states as follows:
For the purposes of the tariff schedule:
The term "aromatic" as applied to any chemical compound refers to such compound containing one or more fused or unfused benzene rings…
EN 33.02 states, in pertinent part, as follows:
This heading covers the following mixtures provided they are of a kind used as raw materials in the perfumery, food or drink industries (e.g., in confectionery, food or drink flavourings) or in other industries (e.g., soap-making):
***
Mixtures of one or more odoriferous substances (essential oils, resinoids, extracted oleoresins or synthetic aromatics) combined with added diluents or carriers such as vegetable oil, dextrose or starch…
Pursuant to Chapter Note 2 to Chapter 33, heading 3302, HTSUS, applies, inter alia, to synthetic aromatics, which are synthetic compounds containing at least one benzene ring, mixed with one or more substances. EN 33.02 states that the substances with which these synthetic aromatics may be mixed include diluents and carriers.
As explained in HQ H274972, supra, Galaxolide® is a synthetic substance that, according to its structural diagram, contains the requisite benzene ring of an aromatic compound within the meaning of Additional U.S. Note 2(a) to Section Note VI. See U.S. Patent No. 4,162,256 (issued July 24, 1979). It can therefore be described as a “synthetic aromatic” and, in effect, as an “odoriferous substance” within the meaning of Note 2 to Chapter 33. Because the instant products are mixtures consisting of an odoriferous substance and diluents, and because they are used as raw materials for perfumery products, they are described by EN 33.02 as examples of products classifiable in heading 3302. Consequently, consistent with HQ H274972, supra, we find that the instant products are properly classified in heading 3302, HTSUS, as mixtures with bases in an odoriferous substance, of a kind used as raw materials in the industry.
HOLDING:
By application of GRI 1, the subject Galaxolide® mixtures are properly classified in heading 3302, HTSUS. They are specifically classified in subheading 3302.90.1050, HTSUSA (Annotated), which provides for: “Mixtures of odoriferous substances and mixtures (including alcoholic solutions) with a basis of one or more of these substances, of a kind used as raw materials in industry; other preparations based on odoriferous substances, of a kind used for the manufacture of beverages: Other: Containing no alcohol or not over 10 percent of alcohol by weight: Other.” The 2016 column one general rate of duty is free.
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 internet at www.usitc.gov/tata/hts/.
You are instructed to ALLOW 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 website 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