CLA-2 RR:CR:GC 962270 MGM
Mr. L.L. Barnhart
Manager, Imports
Transportation Department
Hercules Incorporated
Hercules Plaza
Wilmington, Delaware 19894
RE: Aquapel 364?; Alkyl Ketene Dimer; HQ 084942 revoked
Dear Mr. Barnhart:
This is in reference to Headquarters Ruling Letter (HQ) 084942, issued to you September 13, 1989, which modified New York Ruling Letter (NY) 828583, issued to you March 30, 1988. NY 828583 classified the alkyl ketene dimer Aquapel 364? in subheading 3823.90.40, Harmonized Tariff Schedule of the United States (HTSUS) (1988), as a fatty substance of animal or vegetable origin. HQ 084942 held that Aquapel 364? was properly classified in subheading 3809.92.50, HTSUS, as a finishing agent of a kind used in the paper industry. Upon review of HQ 084942, Customs has discovered an error in the classification of Aquapel 364?. This proposed ruling sets forth the correct classification of this merchandise and the analysis therefor.
FACTS:
According to Customs Laboratory Report 2-98-30036, dated October 20, 1997, and Hercules Inc. publication “Technical Data, Aquapel 364?,” Aquapel 364? is an off-white or light brown waxy solid. It is prepared from long chain fatty acids and used as an ingredient in the production of compounds useful in imparting water repellency to various items.
ISSUE:
Is Aquapel 364? an artificial or prepared wax of heading 3404, HTSUS?
LAW AND ANALYSIS:
Merchandise 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 their appropriate 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.
Heading 3809 provides as follows:
Finishing agents, dye carriers to accelerate the dyeing or fixing of dyestuffs
and other products and preparations (for example, dressings and mordants),
of a kind used in the textile, paper, leather or like industries, not elsewhere
specified or included.
Because heading 3809, HTSUS, provides only for merchandise “not elsewhere specified or included,” Aquapel 364? is not properly classified in heading 3809 if it is encompasseded within any other heading.
Heading 3404, HTSUS, provides for “[a]rtificial waxes and prepared waxes.” This heading includes “[c]hemically produced organic products of a waxy character, whether or not water-soluble.” Note 5 (a), Chapter 34, HTSUS. Aquapel 364? is chemically produced from fatty acids, it is organic (carbon-based), and it has a waxy character, therefore it falls within heading 3404, HTSUS.
Within heading 3404, HTSUS, are three six-digit subheadings: “Of chemically modified lignite,”“Of polyethylene glycol,” and “Other.” Lignite is a “low rank of coal between peat and subbituminous.” Hawley, The Condensed Chemical Dictionary, 10th edition. Aquapel 364? is not a coal derivative and thus is not of chemically modified lignite. Nor is the merchandise of polyethylene glycol. Polyethylene glycol is a polyether derived from condensation of ethylene glycol, or of ethylene oxide and water, while Aquapel 364? is not an ether and is derived from fatty acids. Thus, the merchandise falls within the residual or “Other” provision. Within this provision are provisions for waxes containing bleached beeswax, and “Other.” As Aquapel 364? does not contain bleached beeswax, it is properly classified in the “Other” provision.
HOLDING:
Aquapel 364? is a prepared wax classified in subheading 3404.90.50, HTSUS.
HQ 084942 is revoked.
Sincerely,
John Durant, Director
Commercial Rulings Division