CBP Compounded Classification Error by Waiting to Forward Protest, Importer Argues in CIT Complaint

A CBP Center of Excellence and Expertise improperly classified an imported organometallic substance, then compounded its own classification error by taking too long to forward an application for further review of the protest to CBP headquarters so that CBP HQ was unable to weigh in, importer Lanxess said in an Aug. 21 complaint at the Court of International Trade (Lanxess Corporation v. U.S., CIT # 23-00073).

The imported organometallic is properly classified under the duty-free Harmonized Tariff Schedule subheading 3815.19.00 as “Reaction initiators ... other,” Lanxess said. The complaint argues that CBP erred when it liquidated the items under subheading 3208.90.00 as “Paints and varnishes...” subject to a 3.2% duty, and compounded its error when it denied two protests and sat on a request for further review until it was deemed denied, the importer said.

The organometallic substance, known as AXION CA 1330, is used exclusively to accelerate chemical processes, Lanxess said. AXION isn't a paint or varnish and isn't a solution as defined in Note 4 to Chapter 32. The product doesn't consist of any of the products specified in the required headings to be a "solution" under Chapter 32, Lanxess said. Instead, it is used exclusively as a catalyst and the Explanatory Notes for heading 3815 specifically cover catalysts.

Lanxess imported AXION in 2020 under 3208.90.00 then filed its protests in 2021. CBP denied the protests, citing only a 2010 New York ruling that similarly classified another chemical compound without explanation, Lanxess said. The importer then filed an application for further review. The CBP Center of Excellence and Expertise in question forwarded the protest to CBP headquarters in January 2023 but only after 60 days had passed. CBP HQ therefore determined that the application had been deemed denied.

Lanxess argued that CBP HQ was "prevented by law" from deciding the classification issue because the CEE took too long to forward the AFRs to its HQ for review. Lanxess said it then filed its complaint as a result of its attorney's conversations with CBP HQ about how to most efficiently get the protest in front of HQ.