CLA-2 RR:CTF:TCM H125597 JPJ
Port Director
Bureau of Customs and Border Protection
726 Exchange Street, Suite 400
Buffalo, New York 14210
ATTN: Lawrence J. Mruk, Supervisory Import Specialist
RE: Internal Advice; Classification of Unscented and Scented Bleach and Scented Ammonia
Dear Port Director:
This is in response to your memorandum dated September 17, 2010, forwarding the Port of Buffalo’s request for internal advice. The internal advice request concerns the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of scented and unscented bleach and scented ammonia. The merchandise is imported by Kik Operating Partnership of Etobicoke, Ontario, Canada (KIK). The merchandise is currently being imported at the Port of Buffalo (Port). Product samples were not provided.
FACTS:
The subject articles are described as scented and unscented bleach and scented ammonia. Each is packaged for retail sale and is marketed for laundry and household cleaning. The material safety data sheets for Kik Regular unscented bleach and Kik Regular Ultra bleach found online indicates that the products contain 2.5-6% sodium hypochlorite (CAS 7681-52-9) and .1-1% sodium hydroxide (CAS 1310-73-2) as hazardous ingredients in the product.
In CBP ruling NY R03381, dated March 20, 2006, and in three related QUICS reports (#13882, dated July 26, 2006; #15661, dated June 12, 2007; and #23055, dated August 4, 2010), all involving KIK, the National Import Specialist (NIS) determined that the the merchandise was properly classified in heading 3402, HTSUS, which provides for “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 those of heading 3401”.
The Port argues that the unscented bleach is an aqueous solution of sodium hypochlorite, and is therefore properly classified in heading 2828, HTSUS, which provides for “Hypochlorites; commercial calcium hypochlorite; chlorites; hypobromites”. The Port argues that the scented bleach and the ammonia are classifiable as chemical mixtures N.E.S.I., in heading 3824, HTSUS, which provides for “Prepared binders for foundry moulds 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”.
ISSUE:
What is the proper classification of the merchandise?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff Schedule of the United States (HTSUS) is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI’s may then be applied.
The HTSUS provisions under consideration are as follows:
2828 Hypochlorites; commercial calcium hypochlorite; chlorites; hypobromites.
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 those of heading 3401.
3824 Prepared binders for foundry moulds 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 Harmonized Commodity Description and Coding System Explanatory Notes ("EN’s") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
The EN 34.02 states, in relevant part, as follows:
(B) Washing preparations (including auxiliary washing preparations) and cleaning preparations, having a basis of soap or other organic surface-active agents.
This category covers washing preparations, auxiliary washing preparations and certain cleaning preparations. These various preparations generally contain essential constituents and one or more subsidiary constituents. The presence of these latter constituents distinguishes, in particular, these preparations from those described in Part (A) above.
The essential constituents are synthetic organic surface-agents or soaps or mixtures thereof.
* * *
(C) Cleaning or de-greasing preparations, not having a basis of soap or other organic surface-active agents.
These include:
(i) Acid or alkaline cleaners specially formulated for cleaning sanitary ware, frying pans, etc., e.g., those containing sodium hydrogen sulphate or a mixture of sodium hypochlorite and trisodium orthophosphate.
(ii) Degreasing or cleaning preparations, used, e.g., in dairies or breweries, and with a basis of:
-alkaline substances such as sodium carbonate or caustic soda, or
-solvents and emulsifiers.
This group of products may contain small quantities of soap or other surface-active agents.
(Emphasis in original text).
The Port agrees that while pre-washes and bleaches are included as auxiliary washing preparations of heading 3402, HTSUS, they are only classifiable in that heading if they contain an “essential constituent—either a synthetic organic surface-active agent, a soap, or a mixture thereof”. The Port argues that this restriction on the scope of the heading text may be found in the ENs to heading 3402, HTSUS. The Port states that none of the products at issue includes a synthetic organic surface-active agent, a soap, or a mixture thereof. Therefore, the Port concludes that each of the products at issue lacks what the EN 34.02 describes as an “essential constituent” required for classification in heading 3402, HTSUS. Finally, the Port requests that NY R03381 be revoked, and that the three relevant QUICS reports (#13882, #15661,and #23055) be amended to reflect the classification of the products at issue as follows: the unscented bleach in heading 2828, HTSUS; and the scented bleach and scented ammonia in heading 3824, HTSUS.
The unscented bleach, scented bleach, and scented ammonia are all cleaning preparations. The scented ammonia packaged for retail sale is used as a household cleaner, particularly, to clean glass. The unscented and scented bleach packaged for retail sale is used for laundry and household cleaning.
The text of heading 3402, HTSUS, specifically provides, in relevant part for “surface-active preparations, washing preparations (including auxiliary washing preparations) and cleaning preparations, whether or not containing soap”. Nothing in the heading text suggests that the washing preparations and the cleaning preparations of heading 3402, HTSUS, must contain soap or surfactants.
The Port cites the EN 34.02(II)(B) for the proposition that washing preparations and cleaning preparations must contain either a synthetic organic surface-active agent, a soap, or a mixture thereof. Indeed, the EN 34.02(II)(B) describes washing preparations (including auxiliary washing preparations) having a basis of soap or other organic surface-active agents. (Emphasis added). Hence EN 34.02(II)(B) does not apply to this merchandise.
Rather EN 34.02(II)(C) describes the merchandise as alkaline cleaners. The EN 34.02(II)(C) specifically notes that alkaline cleaners are included in heading 3402, HTSUS, and described therein as
“. . .cleaning preparations, whether or not containing soap, . . .” .
Furthermore, because unscented bleach is not a separate chemical element or a separate chemically defined compound, it is not described by heading 2828, HTSUS, and is excluded by Note 1(a) to Chapter 28, HTSUS. Heading 3824, HTSUS, is a residual provision for merchandise not elsewhere specified or included. Since the scented bleach and the scented ammonia are described by heading 3402, HTSUS, they are not described by heading 3824, HTSUS.
HOLDING:
Pursuant to GRI 1, the unscented bleach, the scented bleach, and the scented ammonia are classifiable in heading 3402, HTSUS, specifically subheading 3402.20.51, HTSUS, which provides for “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 those of heading 3401: Preparations put up for retail sale: Other”.
Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make this 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 methods of public distribution.
Sincerely,
Myles B Harmon, Director
Commercial & Trade Facilitation Division