CLA-2 RR:CR:GC 964310 AM
Mr. James S. O'Kelly
Barnes, Richardson & Colburn
475 Park Ave. South
New York, N.Y. 10016
Re: HQ 956585 revoked; PURADD FD-100, previously known as Pluradyne FD-100
Dear Mr. O'Kelly:
This is in reference to your letter of June 21, 2000, on behalf of BASF Corporation, requesting reconsideration of HQ 956585, dated April 10, 1995, concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of PURADD FD-100. In HQ 956585, it was determined that Pluradyne FD-100 was classifiable in subheading 3811.19.00, HTSUS, which provides for "[A]ntiknock preparations, oxidation inhibitors, gum inhibitors, viscosity improvers, anti-corrosive preparations and other prepared additives, for mineral oils (including gasoline) or for other liquids used for the same purposes as mineral oils: [A]ntiknock preparations: [O]ther." You state that PURADD FD-100 is the new name for Pluradyne FD-100, but that the two products are chemically the same.
We have reconsidered HQ 956585, and the additional information contained in your submissions, dated January 10 and February 15, 2001. We have also considered arguments you presented in a meeting at U.S. Customs Headquarters on February 22, 2001. We find the classification for the subject merchandise in HQ 956585 to be incorrect. The merchandise is not an antiknock preparation; rather, it is a gasoline detergent. Accordingly, the correct classification for the merchandise is subheading 3811.90.00, the provision for "[A]ntiknock preparations, oxidation inhibitors, gum inhibitors, viscosity improvers, anti-corrosive preparations and other prepared additives, for mineral oils (including gasoline) or for other liquids used for the same purposes as mineral oils: [O]ther."
Pursuant to section 625 (c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed revocation of HQ 956585, was published on April 18, 2001, in Volume 35, Number 16, of the CUSTOMS BULLETIN. Your comment was the only comment received in response to the notice. Your are opposing the revocation in favor of classification in subheading 3902.20.50, HTSUS, the provision for "[P]olymers of propylene or of other olefins, in primary forms: [P]olyisobutylene: [O]ther." After careful consideration of the comment, as set forth in this ruling, we have determined to proceed with the revocation.
The subject merchandise is PURADD FD-100 (the same merchandise as the subject of HQ 956585, Pluradyne FD-100). PURADD FD-100 is a clear, colorless, viscous liquid mixture consisting of about 52% polyisobutylene amine (PIB-CH2-NH2, hereinafter "PIB amine") and several saturated hydrocarbons or paraffinic solvent. After entry into the United States, the merchandise is blended with carrier oil, and anti-corrosive and other ingredients to produce a final product consisting of approximately 26%-40% PIB amine. This final multi-purpose product is called PURADD AP-97 and is sold to gasoline suppliers as a detergent additive for mixing into their gasoline in accordance with regulations of the Environmental Protection Agency (EPA). (40 CFR §80.140 et seq.).
Polyisobutenamines are used as gasoline detergent additives. Ullmann's Encyclopedia of Industrial Chemistry, states:
The development of second-generation detergent additives made it possible to keep the hot inlet valve clean. Long-chain, high molecular mass alkyl compounds with a polar end group are very effective. . . . Effective second-generation additives are, for example, polyisobutenamines, polyisobutenepolyamides, or long-chain carboxylic acid amines. These detergents are frequently used in combination with very thermally stable carrier oils that keep the surface of the valve lubricated and ensure continuous flowing off of deposit particles. Ullmann's Encyclopedia of Industrial Chemistry, v. A16, 5th ed., p. 735 (emphasis added).
Second-generation gasoline detergent additives such as polyisobutenamines have a mode of action analogous to that of corrosion inhibitors. Mechanistically, the polar end of the molecule (e.g., amine group) is attached to the metal surface; while a nonpolar, high molecular mass alkyl chain at the other end of the molecule (polyisobutylene) extends into the hydrocarbon fuel. Id. at p. 733. The surface activity of the polar groups ensures the formation of a protective film, whereas the dispersing effect of the polymer component inhibits agglomeration and deposit formation by smaller particles. In this way the carburetor and the inflow and outflow of the cylinders are kept clean. ld. at p. 737. Hence, the sole use of PURADD FD-100 is in the manufacture of a formulated gasoline detergent. The imported product, however, already possesses all of the properties of a gasoline detergent in that it inhibits deposit formation and thus keeps the carburetor and the inflow and outflow of the cylinders clean.
In support of your argument that PURADD FD-100 cannot be used as an additive for gasoline, you submit the results of a "VW (volkswagen) Vasser Boxer Inlet Valve Sticking Test CEC F-16-T-96" which runs a Volkswagen 1.9 liter 44 kW water-cooled-boxer Otto engine of VW type 2 series three times through 13 cycles and allows it to cool down. If, at that time, the engine compression is less than 8 bar, then the inlet valve was sticking in the valve guide. PURADD FD-100 failed this test in the VW engine.
Whether PURADD FD-100 is classified in heading 3811, HTSUS as a gasoline additive, and, if so, whether it is an antiknock preparation or a detergent.
LAW AND ANALYSIS:
Merchandise imported into the U.S. 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 that 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.
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 interpreting 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 HTSUSA. See T.D. 8980, 54 Fed. Reg. 35127 (August 23, 1989).
GRI 2(a) states "[A]ny reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. . . ." GRI 2(b) requires that goods consisting of different materials be classified according to the principles of GRI 3. GRI 3(a) requires that amongst competing headings, the most specific heading be used, but headings which refer to part only of the goods are equally specific. GRI 3(b), provides that composite goods consisting of different materials or made up of different components, shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
The following HTSUS provisions are relevant to the classification of this product:
3811 Antiknock preparations, oxidation inhibitors, gum inhibitors, viscosity improvers, anti-corrosive preparations and other prepared additives, for mineral oils (including gasoline) or for other liquids used for the same purposes as mineral oils:
* * * * *
3811.19.00 Other [than based on lead compounds]
* * * * *
3811.90.00 Other [than anti-knock preparations or additives for lubricating oil]
* * * * * * * * * * *
3902 Polymers of propylene or of other olefins, in primary forms:
Other [than Elastomeric]
The EN to heading 3811, HTSUS, defines detergent additives for gasoline as "[P]reparations used to keep the carburetor and the inflow and outflow of the cylinders clean." EN 38.11, 2(d).
The EN to the Chapter Notes for chapter 39 state, in pertinent part, "[W]hen as a result of the addition of certain substances, the resultant products answer to the description in a more specific heading elsewhere in the Nomenclature, they are excluded from Chapter 39; this is, for example, the case with: . . (b) Prepared additives for mineral oils (Heading 38.11)." ENs p. 597. In Mitsui Petrochemicals v. United States, 21 C.I.T. 882 (1997, Ct. Intl. Trade Lexis 110; slip op. 87-108), the court held that a copolymer of heading 3902 was more specifically described in heading 3811 where the sole use of the imported substance was as a viscosity improver. Id. at 887 (emphasis added). Thus, if heading 3811, HTSUS, describes the merchandise, it is specifically excluded from classification in heading of 3902, HTSUS, under the EN's to Chapter 39, p. 597.
Chapter note 2 to Chapter 39 excludes from classification within chapter 39, in pertinent part, the following:
(d)Solutions (other than collodions) consisting of any of the products specified in headings 3901 to 3913 in volatile organic solvents when the weight of the solvent exceeds 50 percent of the weight of the solution (heading 3208); . .
The commentor notes that subheading 3902.20, HTSUS, is an eo nomine provision for polyisobutylene (hereinafter "PIB") However, the imported product is not PIB. As such, heading 3902, HTSUS, describes part only of the imported product. There is nothing in the terms of the heading, subheading or legal notes that expands the legal language to include classification of a product consisting of a blend of PIB-amine and hydrocarbon solvents using GRI 1. While chapter note 2 to chapter 39 would not specifically exclude this blend from classification in the chapter, this does not mean that the instant merchandise is automatically included in heading 3902 using GRI 1. As a composite good, Puradd FD-100 can only be classified in heading 3902 using a GRI 3 analysis. Therefore, if the merchandise is classifiable in heading 3811, HTSUS, at GRI 1 or GRI 2, this is the more specific and correct classification for the product.
Heading 3811, HTSUS, is a principal use provision. The court in E.M. Chemicals v. United States, 20 C.I.T. 382, 923 F. Supp. 202 (1996) explained the application of principal use provisions thus:
When applying a "principal use" provision, the Court must ascertain the class or kind of goods which are involved and decide whether the subject merchandise is a member of that class. See, supra, Additional US Rule of Interpretation 1 to the HTSUS. In determining the class or kind of goods, the Court examines factors which may include: (1) the general physical characteristics of the merchandise; (2) the expectation of the ultimate purchasers; (3) the channels of trade in which the merchandise moves; (4) the environment of the sale (e.g., the manner in which the merchandise is advertised and displayed); (5) the usage of the merchandise; (6) the economic practicality of so using the import; and (7) the recognition in the trade of this use. United States v. Carborundum Co., 63 C.C.P.A. 98, 102, 536 F.2d 373, 377, cert. denied, 429 U.S. 979, 50 L. Ed. 2d 587, 97 S. Ct. 490 (1976); see also Lenox Coll., 20 C.I.T., Slip Op. 96-30, at page 5.
Applying the Carborundum factors above, a formulated preparation containing PIB amine and paraffinic solvent has the general physical characteristics of a gasoline detergent additive preparation in that it is a preparation used to keep the carburetor and the inflow and outflow of the cylinders clean. The merchandise performs the cleaning function by coating the fuel inlet system, making it less amenable to deposit build-up. (See Ullmanns, supra). The fact that the preparation coats the intake valve proves that the merchandise is performing as a detergent to keep the carburetor and the inflow and outflow of the cylinders clean. Although the addition of a carrier oil optimizes the merchandise for use over time, in very small engines, like that used in the Wasser-Boxer test, this does not change the imported product's basic formulation as a gasoline detergent preparation consisting of the active ingredient, PIB amine.
Moreover, the ultimate purchaser, gasoline suppliers, expect that the product will perform as a gasoline detergent in their gasoline. No evidence has been submitted that proves that the imported product could not perform as a gasoline detergent in the U.S. under EPA guidelines. Gasoline detergents move through blending plants to gasoline suppliers as does the instant merchandise. The merchandise, once fully blended, is tested and advertised as a gasoline detergent. PIB amine formulations are recognized and used as gasoline detergents. Furthermore, the sole use for the imported PIB amine gasoline detergent is in the formulation of a gasoline additive. (See Mitsui, supra). Hence, the merchandise belongs to the class or kind of goods that are principally used as fuel additives and are therefore classifiable in heading 3811 using GRI 1.
Alternatively, Puradd FD-100 is an unfinished product and can not be classified using GRI 1. Using GRI 2(a), the merchandise contains the essential character of a gasoline detergent in that it keeps the carburetor and the inflow and outflow of the cylinders clean by coating the engine and inhibiting deposit formation. Therefore, the merchandise is more specifically described in heading 3811, HTSUS, and excluded from classification in Chapter 39 using GRI 2(a).
The commentor cites the case of Peter J. Schweitzer Division, Kimberly-Clark Corporation v. United States, 57 Cust. Ct. 9, CD 2711 (1966), aff'd, 54 CCPA 44, C.A.D. 902 (1967), for the proposition that imported articles are classified in their condition as imported. On this we agree. In Schweitzer, the court disallowed classification of "flax straw" in the provision for "flax . . . fibers to be used in paper making," because the separation of the fibers from the straw occurred after importation. The analogy to Puradd FD-100 is specious. Puradd FD-100 is not simply PIB, nor is it PIB amine, both arguably classifiable in heading 3902, HTSUS, as "[P]olymers of propylene or of other olefins, in primary forms." Puradd FD-100 is a formulated product containing PIB amine and solvent, and already contains the necessary ingredients to coat the engine thus keeping the carburetor and the inflow and outflow of the cylinders clean. Nothing is being separated from the imported product after importation in the production of the final formulation of gasoline detergent. The already formulated gasoline detergent additive is simply being optimized by the addition of carrier oil, anti-corrosives and other agents for better engine performance. The imported substance already belongs to the class or kind of goods that are principally used as "prepared additives for mineral oils," specifically, gasoline detergent additives.
At GRI 6, between subheadings 3811.19.00, HTSUS, the provision for antiknock preparations, and subheading 3811.90.00, HTSUS, the provision for other gasoline additives, the merchandise is classified in subheading 3811.90.00, HTSUS, because it is formulated for use as a detergent additive for gasoline rather than as an antiknock preparation.
PURADD-FD-100, previously known as Pluradyne FD-100, is classified at GRI 1 in subheading 3811.90.00, the provision for "[A]ntiknock preparations, oxidation inhibitors, gum inhibitors, viscosity improvers, anti-corrosive preparations and other prepared additives, for mineral oils (including gasoline) or for other liquids used for the same purposes as mineral oils: [O]ther."
EFFECT ON OTHER RULINGS:
HQ 956585 is revoked.
John Durant, Director
Commercial Rulings Division