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HQ 960979




March 16, 1998

CLA-2 RR:CR:GC 960979 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 2934.90.9000

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

RE: Application for Further Review of Protest 1601-97-100165, dated July 10, 1997, regarding DTDM Powder (4,4'-Dithio-bis-Morpholine)

Dear Mr. Miller:

This ruling is in reference to a protest filed against multiple decisions of yours issued between April 10, 1997, and May 30, 1997, concerning the classification of the subject merchandise.

FACTS:

The goods under consideration, as stated in the protest, is DTDM powder (CAS # 103-34-4). It is stated to be a pure chemical moiety with no polymeric units. Counsel states that it is not possible to polymerize DTDM powder, in that there is no recognized polymerization chemistry by which this type of chemical could polymerize. It is further stated that there are no unsaturated olefinic groups which could polymerize. It is additionally stated that the DTDM powder cannot polymerize by free radical polymerization, by anionic polymerization, or by cationic polymerization.

ISSUE:

What is the classification of the instant chemical?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the headings and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

In reviewing the documents of record, we note that an analysis by a Customs laboratory of a sample of the goods submitted by the importer in connection to a request for same related to the entries being protested, found the goods to be a yellow powder, a phenolic polymeric material. Analysis by another Customs Laboratory of a sample submitted with another entry and which was stated to be the same product was consistent with the claim of the importer, i.e., the product is Morpholine.

A review of the analyses performed at both Customs laboratories confirmed that there was a variance between the goods covered by the instant protest and the sample submitted for analysis in connection therewith and the other sample submitted for analysis.

Based on a further review of the laboratory analysis, we have concluded that the findings in the latter analysis are consistent with that expected for Morpholine and that the liquidations of the entries covering the merchandise as a phenolic polymeric material was based on the submitted sample which was not representative of the entered goods covered by the instant protest.

HOLDING:

DTDM powder (4,4'-Dithio-bis-Morpholine) (CAS # 103-34-4) is classifiable in subheading 2934.90.9000, HTSUSA.

Since reclassification of the merchandise as indicated above will result in the same rate of duty as claimed or a lower rate of duty for all the entries noted in the protest, except the chronologically oldest one, you are instructed to allow the protest in full as to those entries. Insofar as liquidation of the remaining entry would result in a rate of duty less that the rate of duty claimed but more than the rate for the liquidated classification, you are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance.

A copy of this ruling should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

In accordance with Section 3A(11)(b) of Customs Directive 099-3553-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be provided by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with this decision must be accomplished prior to the 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 Ruling Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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