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HQ 955090




March 6, 1995

CLA-2 CO:R:C:F 955090 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 3815.90.5000

District Director
U.S. Customs Service
P.O. Box 37260
Milwaukee, WI 53237-0260

RE: Application for Further Review of Protest No. 3701-93- 100120, Zirconium Butoxide (CAS 1071-76-7), 80 percent Solution in 1-Butanol

Dear Sir:

This is a decision on a protest filed August 19, 1993, against your decision in the classification of merchandise liquidated on August 6, 1993.

FACTS:

The protestant entered the subject merchandise in subheading 2905.19.0050, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), for "Acyclic alcohols and their halogenated, sulfonated, nitrated or nitrosated derivatives: Saturated monohydric alcohols: Other: Other" which is dutiable at the column one general rate of 3.7 percent ad valorem.

Customs reclassified the merchandise under subheading 3815.90.5000 HTSUSA, as "Reaction initiators, reaction accelerators and catalytic preparations, not elsewhere specified or included: Other: Other" which is dutiable at the column 1 general rate of 5 percent ad valorem.

The protestant seeks reclassification of the goods to subheading 2905.19.0050, claiming that the chemical should be classified under the provision for alcohols and their halogenated, sulfonated, nitrated or nitrosated derivatives.

ISSUE:

What is the proper classification under the HTSUSA of zirconium butoxide (CAS 1071-76-7), 80 percent solution in 1- butanol?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI's). As stated in GRI 1, the classification is determined first in accordance with the terms of the headings which must be read in conjunction with the relative section or chapter notes. If GRI 1 fails to classify the goods and if the heading and legal notes do not otherwise require, the remaining GRI's are applied in their appropriate order. The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN's), facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

According to the Customs laboratory report, this product is composed of a mixture of 1-butanol zirconium (4+) salt (80 percent) and 1-butanol (20 percent). The product is described by the protestant as a mixture of zirconium butoxide and butanol. It is offered in their catalog in both forms, i.e.: 80 percent solution and as a product which is 98 percent pure. Although the protestant is seeking classification of the product in Chapter 29, the EN's state that generally, Chapter 29 is restricted to separate chemically defined compounds, i.e. "A separate chemically defined compound is a compound of known structure, which does not contain other substances deliberately added during or after its manufacture (including purification)." See EN's, Section VI, General notes (Chapter Note 1), pgs. 326-327.

The EN's for Chapter 29 note that the separate chemically defined compounds of Chapter 29 may contain "impurities." The definition for "impurities" is provided in the EN's (pgs. 326- 327) as a substance whose presence in the single chemical compound results solely and directly from the manufacturing process (including purification). In this case, butanol is added to create the initial reaction and more is added so that the product can be standardized. As such, the butanol cannot be considered an impurity within the meaning of Chapter 29.

With respect to the possibility of the addition of butanol to the mixture as a solvent, Legal Note 1(e) to Chapter 29 states that where the product is dissolved in other solvents, such methods must be solely for reasons of safety or transport "... and that the solvent does not render the product particularly suitable for specific use rather than for general use (emphasis supplied)." It is our opinion that while the butanol may have been added for ease of handling, it has also been added to standardize the product, i.e., for a specific use. Therefore, it does not satisfy the exception contained in Legal Note 1(e), and cannot be classified in Chapter 29.

While the product could be classified as a mixture in subheading 3823.90.5010, HTSUSA, the residual provision for aromatic mixtures, the Customs laboratory report specifically describes the uses for this product as a "polymer catalyst." The report further provides that the chemical used in this product, zirconium (4+) salt, is defined as a catalyst, for ammonia reaction with fatty acids (Chemical Abstracts, 9th). Preparations containing catalysts are more specifically described in heading 3815, HTSUSA, which is the residual provision for "Reaction initiators, reaction accelerators and catalytic preparations, not elsewhere specified or included."

In the EN's for heading 3815, it is stated at pg. 537-8, that this heading covers preparations of mixtures which include the following:

(i) free radical "catalysts" (e.g., organic solutions of organic peroxides or of azo compounds, redox mixtures); (ii) ionic "catalysts";
(iii) "catalysts for polycondensation reactions" (e.g., mixtures of calcium acetate with antimony trioxide).

It is further stated in the EN for heading 3815, pg. 538, that these preparations are generally used in the course of manufacture of polymers. Inasmuch as this preparation is a mixture which contains an organic catalyst and is used as a polymer catalyst, we find that the product, zirconium butoxide (CAS 1071-76-7), 80 percent solution in 1-butanol, is properly classified under heading 3815, HTSUSA.

HOLDING:

The product, zirconium butoxide (CAS 1071-76-7), 80 percent solution in 1-butanol, is properly classified under subheading 3815.90.5000 HTSUSA, a provision for "Reaction initiators, reaction accelerators and catalytic preparations, not elsewhere specified or included: Other: Other." Merchandise entered in 1993 and liquidated under subheading 3815.90.5000 HTSUSA, was subject to the column one general rate of duty of 5 percent ad valorem.

Since the rate of duty under the classification indicated above is the same as the liquidated rate, you are instructed to deny the protest in full. A copy of this decision should be attached to the Form 19, Notice of Action, to be returned to the protestant.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office 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, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS, and to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,


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