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HQ 965205




April 19, 2002

CLA-2 RR:CR:GC 965205AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 3815.90.50

Port Director
U.S. Customs Service
200 East Bay Street
Charleston, SC 29401

RE: Protest 1601-00-100177; Irgacure 500

Dear Port Director:

This is our decision on Protest 1601-00-100177, dated September 26, 2000, filed by Ciba Specialty Chemicals Corporation, against your decision in the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of Irgacure 500.

FACTS:

Irgacure 500 is a 1:1 liquid mixture by weight of two photoinitiators. Customs Laboratory report 4-1999-50380, dated July 21, 1990, states “[T]he sample is a pale yellow colored liquid. Laboratory analysis and information from the importer indicate that the sample is a mixture of benzophenone and 1-Hydroxycyclohexyl phenylketone and the sample is used as a photocuring agent.” The merchandise is used to initiate the photopolymerization of chemically unsatured prepolymers primarily in UV-cured clearcoats for vinyl flooring and in overprint varnishes for printed paper.

The merchandise was entered on March 19, 1999, and the entry was liquidated on June 30, 2000, under subheading 3707.90.32, HTSUS, the provision for “[C]hemical preparations for photographic uses (other than varnishes, glues, adhesives and similar preparations); unmixed products for photographic uses, put up in measured portions or put up for retail sale in a form ready for use: [O]ther: [O]ther.” The protest was timely filed on September 26, 2000.

Protestant claims classification under subheading 3815.90.50, HTSUS, the provision for "[R]eaction initiators, reaction accelerators and catalytic preparations, not elsewhere specified or included: [O]ther: [O]ther.”

ISSUE:

What is the classification of Irgacure 500?

LAW AND ANALYSIS:

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 their appropriate 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.

In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The HTSUS headings under consideration are as follows:

3707 Chemical preparations for photographic uses (other than varnishes, glues, adhesives and similar preparations); unmixed products for photographic uses, put up in measured portions or put up for retail sale in a form ready for use:

3815 Reaction initiators, reaction accelerators and catalytic preparations, not elsewhere specified or included:

Chapter 37, Note 2, HTSUS, states: “In this chapter the word "photographic" relates to the process by which visible images are formed, directly or indirectly, by the action of light or other forms of radiation on photosensitive surfaces.”

EN 37.07 states, in pertinent part, that “this heading covers products of a kind used directly in the production of photographic images. Such products include: [E]mulsions, [D]evelopers, [F]ixers, [I]ntensifiers and reducers, [T]oners, [C]learing agents and flashlight materials. All the products cited above fall within the heading only when they are:[P]reparations obtained by mixing or compounding together two or more substances for photographic use.”

The instant merchandise is not used to form a visible image as described in Chapter 37 Note 2, HTSUS. It is not similar to the products listed in the EN 37.07, HTSUS. Although the instant merchandise is a mixture of two or more substances, it is not “for photographic use.”

Hawley’s Chemical Dictionary defines initiator as, “[A]n agent used to start the polymerization of a monomer. Its action is similar to that of a catalyst, except that it is usually consumed in the reaction.” The use of the prefix “photo” in the description of this product does not transform a “photoinitiator,” of heading 3815, HTSUS, into a photographic chemical of heading 3707, HTSUS. The instant merchandise remains a reaction initiator described in heading 3815, HTSUS.

HOLDING:

The protest should be ALLOWED. Irgacure 500 is classified in subheading 3815.90.50, HTSUS, the provision for "[R]eaction initiators, reaction accelerators and catalytic preparations, not elsewhere specified or included: [O]ther: [O]ther.”

In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs 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 of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John A. Durant, Director

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