Application For Further Review of Protest No. 1901-93100065; Diphenyl Sulfone

HQ 955648 September 28, 1995 CLA-2 CO:R:C:F 955648 K CATEGORY: Classification TARIFF NO.: 2930.90.2800 District Director U.S. Customs Service 150 N. Royal Street Mobile Alabama 36602 RE: Application For Further Review of Protest No. 1901-93100065; Diphenyl Sulfone Dear Sir: The following is our response to the referral by your office, dated December 29, 1993, of the request for further review of the above-referenced protest. FACTS: The consumption entry covering the imported merchandise was liquidated on November 12, 1993, under the provision for other organo-sulfur compounds, aromatic pesticides, subheading 2930.90.1000, Harmonized Tariff Schedule of the United States (HTSUS), with duty at the general rate of 12.5 percent ad valorem. A timely classification protest under 19 U.S.C. 1514 was received on November 18, 1993, in which, the protestant requested reliquidation of the entry under the provision for other aromatic organo-sulfur compounds (that is, not as an aromatic pesticide), in subheading 2930.90.2800, HTSUS, with duty at the rate of 6.7 percent ad valorem. New York Ruling Letter (NYRL) 838474, dated March 30, 1989, held, in part, that the subject merchandise was classifiable in subheading 2930.90.1000, HTSUS. It is the position of the protestant that the merchandise is not a pesticide and that it is not an active ingredient used to manufacture a pesticide. The protestant claims that the merchandise is used as an organic intermediate to make flame retardants for plastics. Since the filing of the protest, the protestant submitted a letter from the United States Environmental Protection Agency, dated April 26, 1994, stating that "there are no registered pesticide products in the U.S. that contain Diphenyl Sulfone as -2- an active ingredient." In addition, the protestant has submitted a letter dated March 29, 1994, from a domestic manufacturer of Diphenyl Sulfone in which the manufacturer states that no other use has been found for Diphenyl Sulfone outside the plastics industry. ISSUE: The issue is whether Diphenyl Sulfone is classifiable as an other aromatic pesticide in subheading 2930.90.1000, HTSUS. LAW AND ANALYSIS: There is no dispute that Diphenyl Sulfone is an organo-sulfur compound classifiable in heading 2930, HTSUS. However, the protestant has sustained its claim by the submission of the documentation discussed above that Diphenyl Sulfone is not used as a pesticide or used as an ingredient in the manufacture of a pesticide. Therefore, Diphenyl Sulfone is classifiable in subheading 2930.90.2800, HTSUS, as claimed. NYRL 838474, in so far as the classification of Diphenyl Sulfone is concerned, no longer represents the position of the Customs Service and has been revoked. HOLDING: Diphenyl Sulfone is classifiable in subheading 2930.90.2800, HTSUS, (1993) under the provision for organo-sulfur compounds:... Other ... Aromatic:...Other...Other, with duty at the general rate of 6.7 percent ad valorem. (Note that subheading 2930.90.2800 was deleted from the HTSUS in 1995, and that diphenyl sulfone is now classifiable in subheading 2930.90.2900, added to the HTSUS in 1995.) This decision follows the ruling in Customs Headquarters Ruling dated December 5, 1994 (956977), published on December 21, 1994, in the Customs Bulletin and Decisions, Volume 28, Number 51. You are directed to allow the protest in full. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision, attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision and any reliquidations of entries in accordance with this decision must be accomplished prior thereto. Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette -3- Subscription Service, Freedom of Information Act and other public access channels. Sincerely, John Durant, Director Commercial Rulings Division