CLA-2 CO:R:C:F 950801 EAB
District Director
U.S. Customs Service
909 First Avenue
Seattle, Washington 98174
Re: Application for Further Review of Protest No. 3004-91-
000217, dated November 8, 1991, liquidated October 25,
1991, concerning Advantage 52B Defoamer
Dear Sir:
This is a decision on a protest filed November 8, 1991,
against your decision in the classification of merchandise
liquidated October 25, 1991.
FACTS:
The merchandise is denominated "Advantage 52B Defoamer."
The Exporter's Certificate of Origin identifies Canada as the
country of origin of the product.
The protestant claims that the goods are classifiable under
subheading 3402.13, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), a provision in part describing
nonionic surfactants. Such merchandise that qualified for
special duty treatment under the U.S.-Canada Free Trade Agreement
would have been dutiable in 1991 at the column 1 special rate of
duty of 1.4% ad valorem.
Customs classified the goods under subheading 3809.92,
(HTSUSA), a provision for, among other goods, other products and
preparations of a kind used in the paper industry, not elsewhere
specified or included. Such merchandise that qualified for
special duty treatment under the U.S.-Canada Free Trade Agreement
would have been dutiable in 1991 at the column 1 special rate of
duty of 2.4% ad valorem.
Customs San Francisco and New York laboratories each
independently analyzed a sample of the goods and reported that it
consisted by weight of 5% of silica, 2.5% of ethyl-bis-stearamide
and 92.5% of paraffin oil. Each laboratory report indicated that
the product failed to meet the requirements for classification
under heading 3402, and suggested classification under heading
3809.92, HTSUSA.
ISSUE:
What is the proper classification under the HTSUSA of
Advantage 52B Defoamer?
LAW AND ANALYSIS:
Merchandise imported into the U.S. is classified under the
HTSUSA. The tariff classification of merchandise under the
HTSUSA is governed by the principles set forth in the General
Rules of Interpretation (GRIs) and, in the absence of special
language or context which otherwise requires, by the Additional
U.S. Rules of Interpretation. The GRIs and the Additional U.S.
Rules of Interpretation are part of the HTSUSA 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 GRI's taken in order.
Chapter Note 3, Chapter 34, HTSUSA, sets forth the test for
organic surface-active agents for purposes of classifying such
products under heading 3402. Since the merchandise fails to
satisfy the requirements of the foregoing chapter note, the goods
are not described by heading 3402.
Explanatory Note 38.09 (B)(2) indicates that classifiable
under heading 3809, HTSUSA are preparations based upon paraffin
dispersions.
HOLDING:
You are instructed to deny the protest.
Advantage 52B Defoamer is classifiable under subheading
3809.92.5000, HTSUSA, a provision, in part, for other products
and preparations of a kind used in the paper industry, not
elsewhere specified or included; other, of a kind used in the
paper industry; other.
Entries of products of Canada classified under this
subheading for the year 1991 were dutiable at the column one
special rate of duty of 2.4% ad valorem under the U.S.-Canada
Free Trade Agreement, upon compliance with applicable law and
Customs Regulations.
A copy of this decision should be attached to the Customs
Form 19 and provided to the protestant as part of the notice of
action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division