CLA-2 OT:RR:CTF:TCM H012679 ARM
Area Service Port Director
U.S. Customs Service
112 W. Stutsman
Pembina, ND 58271
RE: Internal Advice #07/004; Classification of New Combi Process Work Solution
Dear Port Director:
The following is our decision regarding your memorandum dated April 21, 2007, requesting Internal Advice #07/004, initiated by letter dated April 10, 2007, by FMC Corporation regarding the classification of two entries of New Combi Process Work Solution, under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
New Combi Process Work Solution consists of 56% aromatic solvent, 15% ethylanthraquinone, 11% Tetra-N-Butyl Urea, 8% Tri-Octyl phosphate and 10% other organic components. The aromatic solvent in the solution is derived from U.S. petroleum distillation. It is mixed in Canada with the other ingredients from China to create the instant process work solution. The finished process work solution is then entered into the U.S. as a starter material for the production of hydrogen peroxide.
ISSUE:
What is the correct classification of New Combi Process Work Solution?
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:
2707 Oils and other products of the distillation of high
temperature coal tar; similar products in which the weight
of the aromatic constituents exceeds that of the
nonaromatic constituents:
2707.50.00 Other aromatic hydrocarbon mixtures of which
65 percent or more by volume (including losses) distills
at 250 ºC by the ASTM D 86 method . . . .
* * * * * *
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:
Other:
Other:
Mixtures containing 5 percent or more by
weight of one or more aromatic or modified
aromatic substances:
3824.90.28 Other.
The ENs to heading 2707 state, in pertinent part, the following:
This heading covers:
* * * * *
(2) Similar oils and products with a predominance of aromatic constituents obtained by the distillation of low temperature coal tar or other mineral tar, by the " stripping " of coal gas, by the processing of petroleum or by any other process.
The heading includes the oils and products referred to above whether crude or refined, but it excludes separate chemically defined compounds in the pure or commercially pure state obtained by further fractionation or by other processing of tar oils (Chapter 29). For benzene, toluene, xylene, naphthalene, anthracene, phenol, cresols, xylenols, pyridine and certain derivatives of pyridine, there are specific purity criteria, indicated in the relevant parts of Explanatory Notes 29.02, 29.07 and 29.33.
Wood tar oils fall in Chapter 38.
The heading does not cover mixed alkylbenzenes or mixed alkylnaphthalenes obtained by the alkylation of benzene or naphthalene, and having fairly long side-chains (heading 38.17).
The instant work process solution consists of a purposeful mixture of chemicals produced for the creation of hydrogen peroxide. The bulk of this mixture contains an aromatic solvent derived from U.S. petroleum distillation. No doubt this aromatic solvent would itself be classified in Chapter 27. However, the first requirement of heading 2707 is that the product be either (1) an oil, or (2) another product of the distillation of high temperature coal tar, or (3) a similar product to oil in which the weight of the aromatic constituents exceeds that of the non-aromatic constituents. Importer states that the product is a mixture of components. Hence, importer recognizes that the product is not an oil or a product of the distillation of high temperature coal tar (April 10, 2007, submission p. 3). Rather, the importer submits that the product be analyzed under GRI 3(b) in order to find which component imparts the good with its essential character.
We agree with the importer that the product is not an oil or other product of the distillation of high temperature coal tar. We also agree that the product is a mixture of such a product and chemicals that are not created from the distillation of coal tar. We disagree, however, that this fact necessitates a GRI 3(b) analysis. Heading 2707 certainly allows for mixtures under a GRI 1 analysis. A mixture is “A heterogeneous association of substances which cannot be represented by a chemical formula. Its components may or may not be uniformly dispersed and can usually be separated by mechanical means. . . .” Hawley’s Condensed Chemical Dictionary, 12th ed., revised by Richard J. Lewis, Sr., p.788 (Van Nostrand Reinhold Company, New York, 1993). Oil and products of the distillation of coal tar originate in the earth where many elemental metals and compounds reside. A portion of these compounds remain in the final products, hence, the products of heading 2707, HTSUS, and all of those listed as included in the heading in EN 27.07 above, are chemical mixtures. In fact, when products derived from the distillation of coal tar are purified beyond a certain point, EN 27.07 directs their classification to Chapter 29.
All of the mixtures listed in the ENs are mixtures of a substance that were part of the original substance and its manufacture. In other words, the question of whether the weight of the aromatic constituents exceeds that of the non-aromatic constituents cannot be posed unless the product is first found to be similar to oil or other products resulting from the distillation of high temperature coal tar. Here, the importer’s product contains separate chemical compounds that were added to the initial aromatic solvent. As such, this particular mixture is not included in the terms of heading 2707, HTSUS, at GRI 1.
The discussion in New York Ruling Letter (NY) C88110, dated June 17, 1998, is not relevant to the classification question presented here. In that case, the merchandise was a reformed naphtha product that had not been mixed with other ingredients. There, the product was obtained solely from the processing of petroleum. Here, the naphtha product, an aromatic solvent, has been mixed with non-petroleum additives and separate chemically defined organic compounds to specifically create the work solution needed for the production of hydrogen peroxide.
As such, the instant work solution, an aromatic solvent derived from petroleum manufacture, mixed with non-petroleum additives and separate chemically defined organic compounds, is described at GRI 1 by heading 3824, HTSUS, as “chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included.”
HOLDING:
By application of GRI 1, New Combi Process Work Solution is classified in heading 3824, HTSUS, specifically in subheading 3824.90.28, HTSUS, which provides 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: Other: Other: Mixtures containing 5 percent or more by weight of one or more aromatic or modified aromatic substances: Other.” The column one, “General” rate of duty is 6.5% ad valorem.
Duty rates are provided for the protestant’s convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
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 CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.CBP.gov, by means of the Freedom of Information Act, and other public methods of distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division