OT:RR:CTF:CPMMA H313009 CKG
Center Director
Pharmaceuticals, Health and Chemicals
Center of Excellence and Expertise (CEE)
U.S. Customs and Border Protection
1100 Raymond Blvd.
Newark, NJ 07102
Attn: Jing Shan Chen, Import Specialist
Re: Protest and Application for Further Review No. 5301-20-104797; chlorine removal promoted zeolites
Dear Center Director:
The following is our decision regarding Application for Further Review (AFR) of Protest No. 5301-20-104797, filed on behalf of the importer, UNICAT Catalyst Technologies (Protestant), contesting U.S. Customs and Border Protection's (CBP) liquidation of two products, denoted as CLX-13X and CLX-16E chlorine removal promoted zeolite catalysts, in heading 3824 of the Harmonized Tariff Schedule of the United States (HTSUS).
The subject merchandise was entered on February 14, 2019, under heading 3824, HTSUS. CBP liquidated the entries on January 10, 2020, in heading 3824, HTSUS. The protest was timely filed on July 07, 2020. Protestant contends that the correct classification of the merchandise is in heading 3815, HTSUS, as a catalytic preparation, specifically subheading 3815.19.0000, HTSUSA (Annotated), as other supported catalysts.
Products of China classified under subheading 3815.19.0000, HTSUSA, are, unless specifically excluded, subject to an additional 10 percent ad valorem rate of duty under subheading 9903.88.03, HTSUS. The Protestant claims that the products are eligible for such an exclusion from the Section 301 tariffs, granted by the U.S. Trade Representative in subheading 9903.88.38, HTSUS, and in U.S. note 20(qq)(25) to subchapter III of chapter 99. Subheading 9903.88.38, HTSUS, provides for "[s]upported catalysts with alumina as the active substance for chlorine removal (described in statistical reporting number 3815.19.0000)."
FACTS:
The product description provided by the Protestant is as follows:
The promoted zeolite chloride removal catalysts are in the shape of spherical beads and used for the removal of inorganic and organic chlorides in either gas or liquid applications such as natural gas, naphtha, refinery off-gas or light to medium range liquid hydrocarbons. The CLX-13X is for the removal of organic chlorides only. The temperature operating range for CLX-13X is ambient to 150F (65C) with the ability to reduce outlet [chlorine (Cl)] Cl content to the 0.1 - 0.5 [parts per million] ppm range. CLX-13X can remove greater than 3% light organic chlorides from gas or liquid applications. The CLX-16E is a high capacity, promoted Zeolite for the removal of inorganic and organic chlorides in either gas or liquid applications such as natural gas, naphtha, refinery off-gas or light to medium range, liquid hydrocarbons. The temperature operating range for CLX-16E is ambient to 150F with the ability to reduce outlet Cl content to the 0.1 - 0.5 ppm range. CLX-16E can remove> 12 wt% HCI from gas or liquid applications.
The Protestant further indicated in an additional submission that the hydrochloric acid (HCL) removal process is accomplished via three processes: 1. chemical reaction, with sodium dioxide as a promotor; 2. adsorption; and 3. pore size trapping. First, the CLX-13X and CLX-16E have 3-10% sodium oxide (Na2O) promoted on a 13X zeolite molecular sieve. Na2O is impregnated on the surface of the sieve, with this specific reaction taking place: Na2O + 2 HCl -------- 2NaCl + H2O. The second mechanism is chloride adsorption. The adsorption occurs via the adhesion of an extremely thin layer of molecules (as of gases, solutes, or liquids) to the surfaces of solid bodies or liquids with which they are in contact; this is a mechanism wherein an HCL molecule is attracted to the very high surface area of the zeolitic, so through adsorption of ionic particles or charged particles HCL adheres to the surface of a zeolite. Finally, the pore size trapping functions via the highly porous open channels of the zeolite structure. The open channels carry a negative charge; therefore, positively charged ions of any type travel into the open channels. The small diameter of the pores also blocks and traps ions in these channels.
We also considered supplemental information received from the Protestant on February 9, 2021.
ISSUE:
Whether the instant merchandise is classified in heading 3815, HTSUS, as reaction initiators, reaction accelerators or catalytic preparation, or in heading 3824, HTSUS, as other chemical products and preparations.
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 December 18, 2004. (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. 5301-20-104797 was properly accorded to Protestant pursuant to 19 C.F.R. 174.24(b) as the protest involves questions of law or fact which have not been ruled upon by the Commissioner of CBP or his designee or the Customs Courts.
Classification of goods under the HTSUS is governed by the General Rules of
Interpretation (GRI). GRI 1 provides that classification 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 HTSUS provisions under consideration are as follows:
3815 Reaction initiators, reaction accelerators and catalytic preparations, not
elsewhere specified or included.
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:
The Harmonized Commodity Description and Coding System Explanatory Notes
(EN), 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 the headings. It is CBP's practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 38.15 provides, in pertinent part, as follows:
This heading covers preparations which initiate or accelerate certain chemical processes. Products which retard these processes are not included.
These preparations fall broadly into two groups.
Those of the first group are, in general, composed either of one or more active substances deposited on a support (known as "supported catalysts") or of mixtures with a basis of active substances. In the majority of cases, these active substances are certain metals, metallic oxides, other metallic compounds or mixtures thereof. The metals most frequently used as such or as compounds are cobalt, nickel, palladium, platinum, molybdenum, chromium, copper or zinc. The support, sometimes activated, generally consists of alumina, carbon, silica gel, siliceous fossil meal or ceramic materials. Examples of "supported catalysts" are supported Ziegler or Ziegler-Natta types.
(b) Those of the second group are mixtures with a basis of compounds whose
nature and proportions vary according to the chemical reaction to be catalysed.
These preparations include :
i) "free radical catalysts" (e.g., organic solutions of organic peroxides or of azo compounds, redox mixtures);
ii) "ionic catalysts" (e.g., alkyllithium);
iii) "catalysts for polycondensation reactions" (e.g., mixtures of calcium acetate with antimony trioxide).
The preparations of the second group are generally used in the course of manufacture of polymers.
* * * *
Heading 3824, HTSUS, which provides for "other" chemical products and preparations, can only be used to classify a chemical mixture as such if the product is not provided for in another heading of the HTSUS (as heading 3824, HTSUS, is a residual heading). Therefore, if it is determined that the merchandise is described by the terms of heading 3815, HTSUS, then heading 3824, HTSUS, cannot be considered for classification of the merchandise.
Heading 3815, HTSUS, provides for "Reaction initiators, reaction accelerators and catalytic preparations, not elsewhere specified or included." EN 38.15 clarifies that the products of this heading fall into two general categories: supported catalysts, and other, unsupported catalysts such as free radical and ionic catalysts. However, neither the legal text of heading 3815, HTSUS, nor the ENs strictly define the term "catalyst." When a tariff term is not defined in the legal text, it is construed according to its common commercial meaning. See Millennium Lumber Distrib. Ltd., v. United States, 558 F.3d 1326, 1329 (Fed. Cir. 2009). To ascertain the common commercial meaning of a tariff term, CBP "may rely on its own understanding of the term as well as lexicographic and scientific authorities." See Lon-Ron Mft. Co. v. United States, 334 F.3d 1304, 1309 (Fed. Cir. 2003). CBP consulted several lexicographic sources that defined "catalyst" as a substance that increases the rate of a chemical reaction (by lowering the activation energy required for the reaction) without itself being consumed, or undergoing any permanent chemical change.[1] Additionally, a catalyst is regenerated during the reaction between the chemical intermediates and the reactants.[2]
The products at issue are the CLX-13X and the CLX-16E "promoted zeolite chloride removal catalysts." In the documents provided by the Protestant, the promoted zeolites are also called "molecular sieves." Based on the information supplied by the Protestant, Na2O (Sodium oxide) is the active substance functioning to remove the HCL (hydrochloric acid), and according to the chemical equation Na2O + 2 HCl -------- 2NaCl + H2O, only the sodium is involved in the chemical reaction removing the HC (i.e., the alumina is not involved in the chloride removal). Furthermore, nothing in the information provided indicates that the sodium oxide is used to increase the rate of a reaction without itself being consumed, or that the Na2O can be regenerated during the reaction between the chemical intermediates and the reactants. According to the definition of catalyst cited above, a catalyst prompts or increases the rate of a chemical reaction, forms chemical intermediates, and is regenerated during the chemical reaction. Considering the chemical reaction equation provided by the Protestant, the Na2O in this case functions as a reactant rather than as a catalyst. As such, Na2O is not classified as a catalyst. Neither of the two components (promoter and molecular sieve) of the Unicat CLX-13X and CLX-16E (Promoted Zeolite Chloride Removal Catalysts) function as a catalyst.
The Protestant uses the term "promoter" at various times to describe the function of the sodium oxide in the instant products. While promoters aid in chemical reactions, a promoter is not itself a catalyst. The term "promoter" in chemistry is defined as the following:
"[a] substance added to a solid catalyst to improve its performance in a chemical reaction. By itself the promoter has little or no catalytic effect. Some promoters interact with active components of catalysts and thereby alter their chemical effect on the catalyzed substance. The interaction may cause changes in the electronic or crystal structures of the active solid component. Commonly used promoters are metallic ions incorporated into metals and metallic oxide catalysts, reducing and oxidizing gases or liquids, and acids and bases added during the reaction or to the catalysts before being used."[3]
The CLX-13X and CLX-16E are also described (and commercially known) as "molecular sieves," referring to the pore trapping function of the instant products.[4] A molecular sieve is a material, typically a metal oxide, that forms three-dimensional lattice patterns. These structures create cavities of precise dimensions that then function as molecular filters, allowing molecules of a certain size to pass through and blocking those of a larger size.[5] Thus, there is no catalytic reaction occurring in the "pore size trapping" function of the instant products. Similarly, the adsorption of chloride molecules to the surface of the zeolite is not a catalytic chemical reaction, as it does not require a chemical initiator to lower the activation energy of the reaction. As neither the CLX-13X and CLX-16E have a catalytic function, both products are precluded from heading 3815, HTSUS.
Thus, because neither of the CLX-13X and CLX-16E chemical preparation products is described by any other heading in the HTSUS, they are classified as entered, in heading 3824, HTSUS, as a chemical preparation not elsewhere specified or included.
HOLDING:
The CLX-13X and CLX-16E are classified in heading 3824, HTSUS, and specifically in subheading 3824.99.3900, HTSUSA, 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: Mixtures of two or more inorganic compounds: Other." The 2020 column one, ad valorem rate of duty is Free.
You are instructed to DENY the protest in full. You are instructed to notify the protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/, which can be found on the CBP website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division
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[1] See e.g., catalyst, n. : Oxford English Dictionary (oed.com); Definition of catalyst - Chemistry Dictionary (chemicool.com).
[2] catalyst | Examples, Definition, & Facts | Britannica.
[3] https://www.britannica.com/science/promoter-catalysis#:~:text=Promoter%2C%20in%20chemistry%2C%20substance%20added%20to%20a%20solid,alter%20their%20chemical%20effect%20on%20the%20catalyzed%20substance ((last accessed 8/28/2020).
[4] See https://sinocata. com/products/adsorbents/zeloite-molecular-sieves/
https://www.zeochem.com/our-products/molecular-sieves
http://www.cabestisrl.com.ar/Axens%20AluminaMolecular%20Sieves.pdf
https://catalysts.basf.com/files/literature-library/BASF_13X-Molecular-
Sieve_Datasheet_Rev.08-2020.pdf
https://catalysts.basf.com/files/literaturelibrary/
92015BASF_Molecular_Sieve_Brochure_USL_190411_110814.pdf
[5] See Molecular Sieve: Purpose, Origin, How Is It Made, Types, and Uses | Xometry. See also Molecular sieve | adsorption, desiccant, porous material | Britannica