H200498

 HQ H200498 February 11, 2021 CLA-2 OT:RR:CTF:TCM H200498 JPJ/CKG CATEGORY: Classification TARIFF NO.: 3204.11.35; 3204.12.45; 3204.15.40; 3204.16.30 Port Director Port of Charleston U.S. Customs and Border Protection 200 East Bay Street Charleston, SC 29401 RE: Protest and Application for Further Review; Protest No. 1601-11-100298; Classification of Preparations Based on Mixtures of Disperse, Reactive, Acid and Vat Dyes; Temporary Duty Suspensions under heading 9902, HTSUS Dear Port Director: This is our decision regarding the Application for Further Review (“AFR”) of Protest No. 1601-11-100298, timely filed on behalf of DyStar L.P., (“Dystar”), concerning the classification of preparations based on mixtures of disperse, reactive, acid and vat dyes under the Harmonized Tariff Schedule of the United States (“HTSUS”). On November 1, 2012, a telephone conference was held between counsel for the Protestant and a member of my staff. On November 14, 2013, a meeting was held at CBP Headquarters with members of my staff. At the meeting, Protestant was granted additional time to supplement its treatment claim. On April 17, 2014, its supplemental submission on the treatment claim was received. On May 23, 2014, Protestant was granted additional time to supplement its supplemental submission on the treatment claim. An additional telephone conference was held on August 15, 2020, followed by an additional supplemental submission from the protestant on September 4, 2020, which we have also reviewed. The treatment claim caused CBP to lose jurisdiction pending the outcome of Am. Fiber & Finishing, Inc. v. United States, 121 F. Supp. 3d 1273, 1287 (Ct. Int'l Trade 2015). The subsequent court decision is discussed herein. FACTS: The merchandise at issue is preparations based on mixtures of disperse, reactive, acid and vat dyes. Protestant is a supplier for the textile, leather, and chemical industries. It obtained temporary duty suspensions under heading 9902, HTSUS, for single dyes that it imports, but not for the preparations. Protestant classified the preparations according to the single dye component with the highest percentage concentration by weight within the preparation. It concluded that the single dye component with the highest percentage concentration by weight within each preparation imparted the essential character of the preparation in accordance with GRI 3(b). In all cases, it excluded the percentage concentration by weight of the dispersing agents, other adjuvents, and water within each of the preparations from its essential character analysis, even when these represented greater than 51% of the preparation’s product formulation. When a temporary duty suspension under heading 9902, HTSUS, was found to correspond to the individual dye component imparting the essential character of the preparation, a claim of duty free treatment was made at the time of entry. The merchandise at issue in Protest No. 1601-11-100298 includes the following preparations based on mixtures of disperse, acid, reactive, and vat dyes: Red Disperse Dye Mixture This is a red disperse dye mixture consisting of the following 2 disperse dyes, dispersing agents, other adjuvents and water: Disperse Red 73 (CAS 16889-10-4), and Disperse Violet 94 (CAS 70609-95-9). The mixture does not have a CAS number. Disperse Red 73 (CAS 16889-10-4) is the dye component with the highest percentage concentration within the mixture. Disperse Red 73 (CAS 16889-10-4) comprises over 30% of the mixture by weight. Disperse Red 73 is specifically provided for in subheading 3204.11.10, HTSUS. The mixture was entered under subheading 3204.11.10, HTSUS, in accordance with the classification of Disperse Red 73 (CAS 16889-10-4), and with a claim of duty free treatment under subheading 9902.03.57, HTSUS. Turquoise Blue Disperse Dye Mixture This is a turquoise blue disperse dye mixture consisting of the following 2 disperse dyes, dispersing agents, other adjuvents and water: Disperse Blue 60 (CAS 12217-80-0) and Disperse Blue S160441 (CAS 157362-53-2). The mixture does not have a CAS number. Disperse Blue 60 (CAS 12217-80-0) is the dye component with the highest percentage concentration within the mixture. Disperse Blue 60 (CAS 12217-80-0) comprises over 30% of the mixture by weight. CAS 12217-80-0 for Disperse Blue 60 is listed in the Chemical Appendix. The CAS number for Disperse Blue S160441 is not listed in the Chemical Appendix. The mixture was entered under subheading 3204.11.50, in accordance with the classification of Disperse Blue 60 (CAS 12217-80-0), and with a claim of duty free treatment under subheading 9902.03.50, HTSUS. Yellow Disperse Dye Mixture This is a yellow disperse dye mixture consisting of the following 2 disperse dyes, dispersing agents, other adjuvents and water: Disperse Yellow 64 (CAS 10319-14-9) and Disperse Yellow 114 (CAS 59312-61-7). The mixture does not have a CAS number. Disperse Yellow 64 (CAS 10319-14-9) is the dye component with the highest percentage concentration within the mixture. Disperse Yellow 64 (CAS 10319-14-9) comprises over 15% of the mixture by weight. CAS 10319-14-9 for Disperse Yellow 64 is listed in the Chemical Appendix. The CAS number for Disperse Yellow 114 is not listed in the Chemical Appendix. The mixture was entered under subheading 3204.11.50, in accordance with the classification of Disperse Yellow 64 (CAS 10319-14-9), and with a claim of duty free treatment under subheading 9902.03.48, HTSUS. Acid Red Dye Mixture This is an acid red dye mixture consisting of the following 2 acid dyes, dispersing agents, other adjuvents and water: Acid Red 414 (CAS 152287-09-7) and Acid Red 239 (CAS 75214-69-6). The mixture does not have a CAS number. Acid Red 414 (CAS 152287-09-7) is the dye component with the highest percentage concentration within the mixture. Acid Red 414 (CAS 152287-09-7) comprises over 30% of the mixture by weight. Neither CAS number is listed in the Chemical Appendix. The mixture was entered under subheading 3204.12.45, in accordance with the classification of Acid Red 414 (CAS 152287-09-7), and with a claim of duty free treatment under subheading 9902.24.86, HTSUS. Black Reactive Dye Mixtures (Reactive Black A) (two formulations) This is a black reactive dye mixture consisting of the following 3 reactive dyes, dispersing agents, other adjuvents and water: Reactive Black 5 (CAS 17095-24-8), Reactive Yellow 201 (CAS 795275-80-8), and Reactive Orange FC970484 (CAS 250688-43-8). The mixture does not have a CAS number. The mixture comes in two formulations. Reactive Black 5 (CAS 17095-24-8) is the dye component with the highest percentage concentration within each mixture. Reactive Black 5 (CAS 17095-24-8) comprises over 50% of the mixtures by weight. CAS 17095-24-8 for Reactive Black 5 is listed in the Chemical Appendix. None of the CAS numbers for the remaining reactive dyes is listed in the Chemical Appendix. The mixtures were entered under subheading 3204.16.50, HTSUS, in accordance with the classification of Reactive Black 5 (CAS 17095-24-8), and with a claim of duty free treatment under subheading 9902.24.91, HTSUS. Black Vat Dye Mixture This is a black vat dye mixture consisting of the following vat dyes, dispersing agents, other adjuvents and water: Vat Black 25 (CAS 4395-53-3) and Vat Blue 20 (CAS 116-71-2). The mixture does not have a CAS number. Vat Black 25 (CAS 4395-53-3) is the dye component with the highest percentage concentration within the mixture. Vat Black 25 (CAS 4395-53-3) comprises over 20% of the mixture by weight. Both CAS numbers are listed in the Chemical Appendix. The mixture was entered under subheading 3204.15.80, HTSUS, in accordance with the classification of Vat Black 25 (CAS 4395-53-3), and with a claim of duty free treatment under subheading 9902.24.45, HTSUS. The six dye mixtures at issue were entered on seven entries between November 10, 2010 and February 14, 2011. The merchandise was entered under subheadings 3204

Initially, we note that 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 entries at issue. (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 Nos. 1601-11-100309, 1601-11-100298, and 1601-11-100317, is properly warranted pursuant to 19 C.F.R. § 174.24(a) as the decisions protested are alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee. Specifically, the Protestant argues that the Port’s liquidation of the subject merchandise is inconsistent with HQ 952891, dated April 19, 1993, which classified a dye mixture pursuant to GRI 3(b). I. ClassificationMerchandise 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 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 1 through 5. The HTSUS (2010 and 2011) provisions under consideration are the following:3204 Synthetic organic coloring matter, whether or not chemically defined; preparations as specified in note 3 to this chapter based on synthetic organic coloring matter; sy