CLA-2:OT:RR:CTF:CPMM HQ H279271 MAB
Port Director
U.S. Customs and Border Protection
2350 N. Sam Houston Parkway East, Suite 1000
Houston, Texas 77032-3126
Attn: Dekeisha Thomas, Senior Import Specialist
RE: Application for Further Review of Protest No. 5309-15-100058; Nebula 20
Dear Port Director:
The following is our decision regarding the Application for Further Review (AFR) of Protest No. 5309-15-100058 timely filed on March 19, 2015, on behalf of Albemarle Corporation (Protestant). The AFR concerns the tariff classification of Nebula 20 under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
Protestant filed this AFR in regard to the entry of Nebula 20. The chemical name of this product is Mixtures of Metal Oxides on Alumina. It is described as an activity shaped base metal hydro processing catalyst that is used for ultra-deep desulfurization, de-nitrogenation and de-aromatization of refinery feed stocks at medium to high pressures. It is a wholly inorganic mixture consisting of five metal oxides which are identified as its active substances: Tungsten (VI) oxide (CAS No. 1314-35-8), Silicon dioxide (CAS No. 7631-86-9), Aluminum oxide (CAS No. 1344-28-1), Molybdenum (VI) trioxide (CAS No. 1313-27-5), and Nickel (II) oxide (CAS No. 1313-99-1).
The subject merchandise was entered at the Port of Houston on November 12, 2013, and liquidated on September 26, 2014, under subheading
3815.90.20, HTSUS, which provides for “Reaction initiators, reaction accelerators and catalytic preparations, not elsewhere specified or included: Other: Consisting wholly of inorganic substances: Of mercury or of molybdenum.” Protestant explained that its declared classification was the result of a typographical error and instead the proper classification for the entry should be 3815.90.30, HTSUS, which provides for “Reaction initiators, reaction accelerators and catalytic preparations, not elsewhere specified or included: Other: Consisting wholly of inorganic substances: Other.”
On March 19, 2015, Protestant filed the instant AFR on Protest No.
5309-15-100058 and asserts classification under 3815.90.30, HTSUS.
The Material Safety Data Sheet (MSDS) provides public ranges for the percentage, by weight, of each chemical component of Nebula 20. Of relevance in this matter, the weights are as follows: Tungsten (VI) oxide is in the range of 30-70%, Silicon dioxide is in the range of 0-10%, Aluminum oxide is in the range of 0-1%, Molybdenum (VI) trioxide is in the range of 0-40%, and Nickel (II) oxide is in the range of 10-50%.
U.S. Customs and Border Protection (CBP) Laboratories and Scientific Services Directorate (LSSD) examined a sample of Nebula 20. In regard to the weights of Nebula 20’s components, LSSD’s chemical and physical analysis results were consistent with Protestant’s claims.
ISSUE:
Whether Nebula 20 is classified under subheading 3815.90.20, HTSUS, as “Of mercury or of molybdenum” or under subheading 3815.90.30, HTSUS, as “Other.”
LAW AND ANALYSIS:
Initially, we note that the matter 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. (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 will be accorded to a party filing an AFR that meets the requirements of section 174.25 and at least one of the criteria in section 174.24. We find that Protestant meets the criteria in section 174.24(b) in that the instant case involves questions of law or fact that have not been ruled upon previously.
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 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, GRIs 2 through 6 may then be applied in order.
The 2013 HTSUS provisions under consideration are as follows:
3815 Reaction initiators, reaction accelerators and catalytic
preparations, not elsewhere specified or included:
3815.90 Other:
Consisting wholly of inorganic substances:
3815.90.20 Of mercury or of molybdenum
3815.90.30 Other
CBP concurs with Protestant that as an unsupported hydro processing catalyst, the instant product is classified at the six-digit level in heading 3815.90. The classification dispute thus arises at the eight-digit level.
Protestant argues that CBP’s classification of Nebula 20 in subheading 3815.90.20, HTSUS, is incorrect. It asserts that Nebula 20 does not fall under subheading 3815.90.20, HTSUS, because it does not consist “wholly….of mercury or of molybdenum.” Since Nebula 20 is not “wholly” made of any single specified metal and instead contains a mixture of five (5) inorganic substances, protestant contends that it should be classified as “Other” in subheading 3815.90.30, HTSUS.
As an initial matter, we agree with Protestant that Nebula 20 is a mixture in that it contains five (5) inorganic substances. We note, too, that all five (5) of Nebula 20’s inorganic substances are metal oxide compounds.
The tariff terms “[o]f mercury or of molybdenum” in subheading 3815.90.20, HTSUS, refer only to the named base metals and do not include the oxides of these metals; therefore, CBP was incorrect to focus on the component of molybdenum trioxide (weight range 0-40% of Nebula 20) and thereby classify Nebula 20 in 3815.90.20, HTSUS. “Wholly” of each of the base metals listed in
subheadings 3815.90.10, HTSUS, and 3815.90.20, HTSUS, in elemental form
instead would be classified as base metals of chapter 81, HTSUS.
CBP has classified similar catalytic preparations in subheading 3815.90.30, HTSUS. See N129147, dated November 17, 2010 (classifying a “cluster” catalyst consisting of titanium dioxide and magnesium hydroxide in an ethylene glycol slurry in subheading 3815.90.30, HTSUS) and NY 849660, dated February 26, 1990 (classifying catalysts NS-733D (D) and NS733D (DF) in powder form composed of various metallic oxides in subheading 3815.90.30, HTSUS).
HOLDING:
By application of GRIs 1 and 6, Nebula 20 is classified in heading 3815, HTSUS, and specifically in subheading 3815.90.3000, HTSUSA (annotated), which provides for: “Reaction initiators, reaction accelerators and catalytic preparations, not elsewhere specified or included: Other: Consisting wholly of inorganic substances: Other.” The 2013 column one general rate of duty is free.
Since the rate of duty under the classification indicated above is less than the liquidated rate, you are instructed to GRANT the protest in full.
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 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 Divisio