CLA-2 OT:RR:CTF:TCM H240512 LWF
Port Director
Service Port—Buffalo
U.S. Customs and Border Protection
726 Exchange St., Suite 400
Buffalo, NY 14210
Attn: Maryalice Nowak, Supervisory Import Specialist
Re: Request for Internal Advice; tariff classification of two paraffinic mineral oil-based foam control agents, the DREWPLUS® T-4507 and ADVANTAGE™ 831
Dear Port Director:
This is in reference to your request for Internal Advice, initiated by Ashland, Inc. (“Ashland”) on January 11, 2013 at the U.S. Customs and Border Protection (CBP) Service Port of Buffalo. At issue is the proper tariff classification of two paraffinic mineral oil-based foam control agents, the “DREWPLUS® T-4507” and the “ADVANTAGE™ 831”, under the Harmonized Tariff Schedule of the United States (HTSUS). The request for Internal Advice is sought based on Ashland’s query concerning whether the foam control agents are appropriately classified in 3824, 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.” In your forwarding memorandum, dated February 12, 2013, you reference research by the Port indicating potential classification of the merchandise in HTSUS Chapters 27, 32, 34, or 38.
FACTS
Ashland’s request for Internal Advice concerns the tariff classification of two paraffinic mineral-oil based foam control agents, identified as the “DREWPLUS® T-4507” and the “ADVANTAGE™ 831” (“the Defoamers”).
The DREWPLUS T-4507 consists of 89% paraffinic mineral oil (CAS No. 64742-58-1), 9% hydrotreated spent methylated silica (CAS No. 67762-90-7), and 2% silica colloidal amorphous, dimethylsilicones and siloxanes, and octamethlycclotetrasiloxane. Ashland states that the DREWPLUS T-4507 Defoamer is designed to control process and surface foam in paints, wastewater systems, food processing, adhesives, mining and extraction, pharmaceuticals, and power generation. In its condition as imported, the specific end usage of the DREWPLUS T-4507 is not known.
The ADVANTAGE 831 consists of 85% paraffinic mineral oil (CAS No. 64742-65-0), 10% hydrophobic methylated silica (CAS No. 67762-90-7), and 5% polyoxyethylene sorbitan tristearate, fatty acids, water and dimethyl silicones and siloxanes. Ashland states that ADVANTAGE 831 is intended for foam-control use in multiple applications, including paints, wastewater, papermaking, aqueous adhesives, cutting oils, water-based printing inks, liquid floor polishes, drilling muds, textile dyeing, and finishing and scouring operations. In its condition as imported, the specific end usage of the ADVANTAGE 831 is not known.
ISSUE
Whether the Ashland DREWPLUS T-4507 and ADVANTAGE 831 Defoamers are classified as preparations of heading 2710, HTSUS; paints and varnishes of heading 3208, HTSUS; organic surface-active agents or surface-active preparations of heading 3402, HTSUS; preparations of a kind used in the textile, paper, leather, or like industries of heading 3809, HTSUS; or chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included of heading 3824, HTSUS.
LAW AND ANALYSIS
Classification under the Harmonized Tariff Schedule of the United States is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of gods shall be determined according to the terms of the headings of the tariff schedule 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 GRIs may then be applied.
The following HTSUS provisions will be referenced:
2710 Petroleum oils and oils obtained from bituminous minerals, other than crude; preparations not elsewhere specified or included, containing by weight 70 percent or more of petroleum oils or of oils obtained from bituminous minerals, these oils being the basic constituents of the preparations; waste oils
3208 Paints and varnishes (including enamels and lacquers) based on synthetic polymers or chemically modified natural polymers, dispersed or dissolved in a nonaqueous medium; solutions as defined in note 4 to this chapter
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
3809 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
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
* * * * *
Note 3 to Chapter 34, HTSUS, states that:
For purposes of heading 3402, “organic surface-active agents” are products which when mixed with water at a concentration of 0.5 percent at 20 and left to stand for one hour at the same temperature:
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.
* * * * *
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 Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The ENs to heading 34.02, HS, describe “organic surface-active agents” as follows:
Organic surface-active agents are capable of adsorption at an interface; in this state they display a number of physico-chemical properties, particularly surface activity (e.g., reduction of surface tension, foaming, emulsifying, wetting), which is why they are usually known as “surfactants”.
However, products which are not capable of reducing the surface tension of distilled water to 4.5 x 10-2 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 ENs to heading 38.24, HS, states, in pertinent part:
With only three exceptions (see paragraphs (7), (19) and (32) below), this heading does not apply to separate chemically defined elements or compounds.
[…]
The chemical or other preparations [of heading 38.24, HS] are either mixtures (of which emulsions and dispersions are special forms) or occasionally solutions. Aqueous solutions of the chemical products of Chapter 28 or 29 remain classified within those Chapters, but solutions of these products in solvents other than water are, apart from a few exceptions, excluded therefrom and accordingly fall to be treated as preparations of this heading.
The preparations classified here may be either wholly or partly of chemical products (this is generally the case) or wholly of natural constituents (see, for example, paragraph (24) below).
[…]
Subject to the above conditions, the preparations and chemical products falling here include :
[…]
(36) Starting fluid for petrol engines, consisting of diethyl ether, 70 % or more by weight of petroleum oils and also other constituents, the diethyl ether being the basic constituent.
* * * * *
Heading 2710, HTSUS, provides for “Petroleum oils and oils obtained from bituminous minerals, other than crude; preparations not elsewhere specified or included, containing by weight 70 percent or more of petroleum oils or of oils obtained from bituminous minerals, these oils being the basic constituents of the preparations; waste oils.” (Emphasis added). As an initial matter, therefore, because heading 2710, HTSUS, provides for certain preparations of petroleum oils or oils obtained from bituminous minerals that are not elsewhere specified or included, this office must first determine whether the Defoamers are classifiable elsewhere in the Nomenclature.
Specifically, in its February 13, 2013 forwarding memo, the Port queries whether the Defoamers are properly classified in heading 3208, HTSUS, which provides, in pertinent part, for “[S]olutions as defined in note 4 to this chapter.” Note 4 to Chapter 32, HTSUS, states that “Heading 3208 includes 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.” (Emphasis added).
With respect to the definition of the term “volatile organic solvents,” CBP has determined in prior rulings that the term includes mineral spirits similar to turpentine. See Headquarters Ruling Letter (“HQ”) 961841, dated February 25, 1999 (classifying a solution of vinyl polymer and silicone oil in mineral spirits (the “Dehydran 1208” solution) as an article of heading 3208, HTSUS, after taking into account that the mineral spirits accounted for over 50% of the weight of the solution). Unlike ruling letter HQ 961841, however, the instant Ashland Defoamers do not contain mineral spirits. By contrast, the DREWPLUS T-4507 and ADVANTAGE 831 Defoamers are described as formulations of silica derivatives blended in paraffinic mineral oil. Accordingly, the instant merchandise does not meet the terms of Note 4 to Ch. 32, HTSUS, and thus, cannot be classified in heading 3208, HTSUS, as solutions thereof.
Similarly, the DREWPLUS T-4507 and ADVANTAGE 831 Defoamers are not described by the terms of heading 3402, HTSUS, which provide, in relevant part, for organic surface-active agents. Specifically, this office observes that to be classified as an “organic surface-active agent” of heading 3402, HTSUS, a chemical product must satisfy a two-part definitional test set forth in Note 3 to Chapter 34, HS, which describes the interaction of organic surface-active agents when mixed with water. Here, however, Ashland asserts that the Defoamers fail to meet the requirements of Note 3 to Chapter 34, HS, and CBP laboratory analysis confirms that the merchandise does not possess the properties of a “surfactant” for purposes of tariff classification. See EN 34.02, HS. Accordingly, this office finds no dispute that the DREWPLUS T-4507 and ADVANTAGE 831 fail to meet the definition of “organic surface-active agents” set forth in Chapter 34, HS, and must be classified elsewhere in the Nomenclature.
The Port alternatively queries whether the Defoamers are properly classified in heading 3809, HTSUS, which provides for “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.” (Emphasis added). Although the phrase “of a kind used in the textile, paper, leather or like industries” is not defined in the Notes or the ENs, this office finds that the words “of a kind used” indicate that heading 3809, HTSUS, is a “principal use” provision governed by Additional U.S. Rule of Interpretation 1(a).
Principal use provisions “‘call for a [factual] determination as to the group of goods that are commercially fungible with the imported goods’” so as to identify “the ‘use which exceeds any other single use.’” Aromont USA, Inc. v. United States, 671 F.3d 1310, 1312 (Fed. Cir. 2012) (quoting Primal Lite, Inc. v. United States, 182 F.3d 1362, 1365 (Fed. Cir. 1999); Lenox Collections v. United States, 20 CIT 194, 196 (1996)). The courts customarily use several factors, commonly referred to as the “Carborundum Factors,” to inform its determination as to which goods are “commercially fungible with the imported goods.” Id. (quoting Primal Lite, 182 F.3d at 1365) (internal quotation marks omitted). These factors include: use in the same manner as merchandise which defines the class; the general physical characteristics of the merchandise; the economic practicality of so using the import; the expectation of the ultimate purchasers; the channels of trade in which the merchandise moves; the environment of the sale, such as accompanying accessories and the manner in which the merchandise is advertised and displayed; and the recognition in the trade of this use. Id.
Accordingly, for the DREWPLUS T-4507 and ADVANTAGE 831 Defoamers to be classified under heading 3809, HTSUS, the facts must show that the use of the Defoamers in the textile, paper, leather, or like industries exceeds any other single use of the Defoamers. Here, however, Ashland states in its December 11, 2012 submission that the exact end usage of the Defoamers is not known when the merchandise is entered into the United States and that upon importation, the DREWPLUS T-4507 and ADVANTAGE 831 Defoamers are instead suitable for use in a wide variety of potential industrial applications. For example, Ashland describes the DREWPLUS T-4507 Defoamer as suitable for use to control process and surface foam in paints, wastewater systems, food processing, adhesives, mining and extraction, pharmaceuticals, and power generation. Similarly, the Ashland states that the ADVANTAGE 831 Defoamer is suitable for use in paints, wastewater, papermaking, aqueous adhesives, cutting oils, water-based printing inks, liquid floor polishes, drilling muds, textile dyeing, and finishing and scouring operations. Given the many potential uses of the DREWPLUS T-4507 and ADVANTAGE 831 Defoamers, however, the facts do not support a finding that any one application exceeds another single use to impart the Defoamers with a principal use. Accordingly, this office finds that the DREWPLUS T-4507 and ADVANTAGE 831 Defoamers are not “of a kind used in the textile, paper, leather, or like industries” and therefore, are not classifiable in heading 3809, HTSUS.
As the DREWPLUS T-4507 and ADVANTAGE 831 Defoamers are not otherwise classifiable in headings 3208, 3402, or 3809, HTSUS, this offices observes that heading 3824, HTSUS, describes, in pertinent part, “[C]hemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included. Here, the Ashland DREWPLUS T-4507 and ADVANTAGE 831 Defoamers are properly identified as “preparations” of the chemical industry, in so far as they are “substance[s] specially prepared, or made up for its appropriate use or application,” namely that of a foam controlling agent in various industrial processes. See Orlando Food Corp. v. United States, 140 F.3d 1437, 1441 (Fed. Cir. 1994) (quoting The Oxford English Dictionary 374 (2d. ed. 1989)). The Defoamers are not elsewhere specified in the Nomenclature, and they are not excluded from classification in Chapter 38, HTSUS, by any of the notes to the Chapter. Accordingly, the Ashland DREWPLUS T-4507 and ADVANTAGE 831 Defoamers fall to be classified under heading 3824, HTSUS, specifically under subheading 3824.90.48, 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: Other: Mixtures that are in whole or in part of hydrocarbons derived in whole or in part from petroleum, shale oil or natural gas.”
As the DREWPLUS T-4507 and ADVANTAGE 831 Defoamers are classified in heading 3824, HTSUS, they are excluded from classification in heading 2710, HTSUS.
HOLDING:
By operation of GRI 1, the Ashland DREWPLUS T-4507 and ADVANTAGE 831 Defoamers are properly classified under heading 3824, HTSUS, specifically under subheading 3824.90.48, 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: Other: Mixtures that are in whole or in part of hydrocarbons derived in whole or in part from petroleum, shale oil or natural gas.” The general, column one rate of duty is 6.5% ad valorem.
You are to mail this decision to counsel for the internal advice requester no later than sixty days from the date of this decision. At that time, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public, on the CBP Home Page at http://www.cbp.gov, by means of the Freedom of Information Act, and other methods of publication.
Sincerely,
Joanne Stump, Acting Director
Commercial and Trade Facilitation Division