CLA-2 RR:CR:GC 965581 AM
Area Port Director
U.S. Customs Service
P.O. Box 1490
St. Albans, VT 05478
RE: Darex II AEA and Daracem 100 cement additives
Dear Port Director:
The following is our decision regarding your memorandum dated April 3, 2002, forwarding a request for Internal Advice, which was initiated by letter dated March 15, 2002, by counsel on behalf of W.R. Grace & Co. and seeks classification of Darex II AEA and Daracem 100 cement additives, under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
Darex II AEA is an alkaline solution of fatty acid salts. It is added to cement to generate highly stable air void system in concrete, for increased protection against damage from freezing, thawing, severe weathering. When agitated with concrete, Darex II AEA generates and disperses millions of discrete semi-microscopic bubbles throughout the concrete composite, increasing the mobility, or plasticity, of the concrete. Customs Laboratory report 3-97-30378-001, dated June 12, 1997, analyzing Darex II AEA, states, in pertinent part, “the sample, a brown liquid, is an aqueous solution based on alkali metal salts of fatty acids." Customs Laboratory report NY20020842, dated August 5, 2002, states the following: "The sample labeled Darex II AEA, is an alkaline solution based on fatty acid salts, is a soap in other forms."
Daracem 100 is an aqueous solution of sodium/potassium naphthalene sulfonates (CAS 9084-06-4/67828-14-2), lignin and hydroxycarboxylic acid salts. It is added to cement to increase the quality and plasticity of concrete mix. When added to concrete, Daracem 100 neutralizes the surface charges on cement particles, causing extreme dispersion and cement hydration, which in turn increases strength development by improving slump retention in flowable concrete. Customs Laboratory report 3-97-30380-001, dated May 27, 1997, states the following: "the sample, a brown liquid, is a surface-active preparation, not put up for retail sale, of the other type containing aromatic surface-active agents. Customs Laboratory report #NY20020843, dated August 19, 2002, states, in pertinent part, “the product labeled Daracem 100, is a prepared additive for cements, mortars or concretes containing five percent or more by weight of one or more aromatic or modified aromatic substances. The sample, as received, produced an average reading of 61.40 dyne/cm on the surfactant test, as provided in Chapter 34, note 3(b)."
ISSUE:
What is the correct classification of Darex II AEA and Daracem 100.
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 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.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUS headings under consideration are as follows:
3401 Soap; organic surface-active products and preparations for use as soap, in the form of bars, cakes, molded pieces or shapes, whether or not containing soap; organic surface-active products and preparations for washing the skin, in the form of liquid or cream and put up for retail sale, whether or not containing soap; paper, wadding, felt and nonwovens, impregnated, coated or covered with soap or detergent:
* * * * * *
3402 Organic surface-active agents (other than soap); surface-active preparations, washing preparations including auxiliary washing preparations) and cleaning preparations, whether or not containing soap, other than hose of heading 3401:
* * * * * *
3824 Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included:
The Notes to chapter 34 state, in pertinent part, as follows:
* * * * * *
2. For the purposes of heading 3401, the expression "soap" applies only to soap soluble in water. Soap and the other products of heading 3401 may contain added substances (for example, disinfectants, abrasive powders, fillers or medicaments). Products containing abrasive powders remain classified in heading 3401 only if in the form of bars, cakes or molded pieces or shapes. In other forms they are to be classified in heading 3405 as "scouring powders and similar preparations".
3. For the purposes of heading 3402, "organic surface-active agents" are products which when mixed with water at a concentration of 0.5 percent at 20°C and left to stand for one hour at the same temperature:
(a) Give a transparent or translucent liquid or stable emulsion without separation of insoluble matter; and
Reduce the surface tension of water to 4.5 x 10-2 N/m (45 dyne/cm) or less.
EN 34.01 states, in pertinent part, the following:
(I) SOAP
Soap is an alkaline salt (inorganic or organic) formed from a fatty acid or a mixture of fatty acids containing at least eight carbon atoms. In practice, part of the fatty acids may be replaced by rosin acids.
The heading covers only soap soluble in water, that is to say true soap. Soaps form a class of anionic surface-active agents, with an alkaline reaction, which lather abundantly in aqueous solutions.
There are three categories of soap: . . . .
Liquid soaps, which are solutions of soap in water, in some cases with a small quantity (generally not exceeding 5 %) of alcohol or glycerol added, but not containing synthetic organic surface-active products.
This part covers in particular: . . . .
(4)Industrial soaps, prepared for special purposes, such as those used for wire-drawing, for polymerising synthetic rubber, or in laundries.
Subject to the exception in paragraph 1 (f) above, the soaps of this heading are generally in the following forms : bars, cakes, moulded pieces or shapes, flakes, powder, paste or aqueous solution.
EN 34.02 states, in pertinent part, “products which are not capable of reducing the surface tension of distilled water to 4.5 x 10 N/m (45 dyne/cm) or less at a concentration of 0.5 % at 20°C are not regarded as surface-active agents and are therefore excluded from this heading."
The Hawley’s Condensed Chemical Dictionary, 14th Edition, pages 1001-1002, states in part the following:
Soap. (1) The water-soluble reaction product of a fatty acid ester and an alkali (usually sodium hydroxide), with glycerol as by-product. For the reaction, see saponification. A soap is actually a specific type of salt, the hydrogen of the fatty acid being replaced by a metal, which in common soaps is usually sodium. Soap lowers the surface tension of water and thus permits emulsification of fat-bearing soil particles….
The Kirk-Othmer Concise Encyclopedia of Chemical Technology, 4th Edition, pages 1840-1843 states, in pertinent part, the following:
Additional uses of soap. The primary use of carboxylate soaps is in the manufacture of personal cleaning products, principally bar soaps. There are also other applications. . . . Soaps are also utilized in emulsion polymerization. Furthermore, soaps are used in a variety of cosmetic products.
By the terms of the heading, a product classifiable in heading 3401, HTSUS, cannot be classified in heading 3402, HTSUS. Furthermore, a product classifiable in either heading 3401 or 3402, HTSUS, is “elsewhere specified” and therefore excluded from classification in heading 3824, HTSUS.
As an aqueous solution based on alkali metal salts of fatty acids, Darex II AEA conforms to the description of soap found in the technical literature and ENs, supra. It is a liquid used as an industrial soap to increase the mobility of cement. It is therefore classified in subheading 3401.20.00, HTSUS, the provision for “Soap; organic surface-active products and preparations for use as soap, in the form of bars, cakes, molded pieces or shapes, whether or not containing soap; organic surface-active products and preparations for washing the skin, in the form of liquid or cream and put up for retail sale, whether or not containing soap; paper, wadding, felt and nonwovens, impregnated, coated or covered with soap or detergent: Soap and organic surface-active products and preparations, in the form of bars, cakes, molded pieces or shapes, and paper, wadding, felt and nonwovens, impregnated, coated or covered with soap or detergent: Soap in other forms.”
The issue in classifying Daracem 100 revolves around whether the ingredient, sodium/potassium naphthalene sulfonate (CAS 9084-06-4/67828-14-2), contains a surface active agent, because preparations containing surface active agents may meet the terms of heading 3402, HTSUS. Laboratory report #NY20020843 confirms that Daracem 100 mixed with water as prescribed in Chapter 34, note 3, lowers the surface tension of water only to 60-65 dyne/cm. In an electronic mail message forwarded from counsel, dated September 18, 2002, the importer states "when Daracem-100 active ingredients diluted to 0.5%, the surface tension is higher than 45 dyne/cm." Although this response does not definitively determine whether naphthalene sulfonate-formaldehyde is a surface active agent, our research indicates that it is unlikely to meet the test described in Chapter 34, note 3(b), for surface active agents. First, the Kirk-Othmer Encyclopedia of Chemical Technology, 4th Ed., v. 23, p.495 states that naphthalenesulfonates are "highly water soluble and hence are not strongly surface-active in soft water." Second, the finished product reduced the surface tension of water to an amount much greater than the required 45 dyne/cm or less. Hence, the likelihood that the active ingredient in the product would itself reduce the surface tension of water to the required amount is small. Therefore, heading 3824, HTSUS, is the only heading descriptive of the product. Specifically, the merchandise is classified in subheading 3824.40.10, HTSUS, the provision for “Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included: Prepared additives for cements, mortars or concretes: Containing 5 percent or more by weight of one or more aromatic or modified aromatic substances.”
HOLDING:
Darex II AEA is classifiable as a soap in subheading 3401.20.00, HTSUS, the provision for “Soap; organic surface-active products and preparations for use as soap, in the form of bars, cakes, molded pieces or shapes, whether or not containing soap; organic surface-active products and preparations for washing the skin, in the form of liquid or cream and put up for retail sale, whether or not containing soap; paper, wadding, felt and nonwovens, impregnated, coated or covered with soap or detergent: Soap and organic surface-active products and preparations, in the form of bars, cakes, molded pieces or shapes, and paper, wadding, felt and nonwovens, impregnated, coated or covered with soap or detergent: Soap in other forms.” Based on the information received, Daracem 100 is classified in subheading 3824.40.10, HTSUS, the provision for “Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included: Prepared additives for cements, mortars or concretes: Containing 5 percent or more by weight of one or more aromatic or modified aromatic substances.” Additional information may be obtained at your discretion.
You are directed to mail this decision to the internal advice applicant, no later than 60 days from the date of this letter. On that date the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other public methods of distribution.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division