CLA-2 RR:CR:GC 965797 AM
Mr. James W. Lawless
C.H. Powell Company
1 Intercontinental Way
Peobody, MA 01960
Re: Revocation of NY D88824; Borol® solution, a liquid sodium borohydride product
Dear Mr. Lawless:
This is in reference to New York Ruling Letter (NY) D88824, issued to you on April 8, 1999, by the Customs Service National Commodity Specialist Division, concerning the classification, under the Harmonized Tariff Schedule of the United States, (HTSUS), of Borol®, a liquid sodium borohydride (LSBH) product.
In NY D88824, the merchandise was classified in subheading 3824.90.39, HTSUS, the provision for “[p]repared 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: [r]esidual products of the chemical or allied industries, not elsewhere specified or included: [o]ther." We have reviewed this ruling and consider it to be incorrect.
Pursuant to section 625(c)(1) Tariff Act of 1930 (19 U.S.C. 1625(c)(1)) as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, (Pub. L. 103-82, 107 Stat. 2057, 2186), notice of the revocation of NY D88824 was published on November 13, 2002, in the CUSTOMS BULLETIN, Volume 36, Number 46. No comments were received in response to this notice.
FACTS:
Borol® consists of 12 % sodium borohydride, CAS 16940-66-2, 40% Sodium Hydroxide, CAS 1310-73-2, and water. Borol® belongs to a class of products known as LSBH products. The Kirk-Othmer Concise Encyclopedia of Chemical Technology, 4th edition, (John Wiley & Sons, Inc., p.284) states, in pertinent part, "[t]he predominant use for sodium borohydride is in wood pulp (qv) bleaching. The next largest commercial use is as a reducing agent of functional groups in organic synthesis. A significant application in pharmaceutical synthesis is the stereospecific and selective reduction in steroid production."
Customs Laboratory report 2-1999-20932, dated March 23, 1999, states, in pertinent part, that the sample is used as an "intermediate to produce a bleach used in the paper industry" and consists of a "mixture of inorganic chemicals."
After entry, Borol® solution and a 38% sodium bisulphite solution are simultaneously mixed in the pulp stream to form a 100% active hydrosulfite bleach. "Bleaching," as it applies to the paper making industry, is "the process of chemically treating pulp to alter the coloring matter so that the pulp has a higher brightness. This is usually accompanied by partial removal of noncellulosic materials. The two classes of chemicals used are oxidizing agents . . . and reducting agents (such as sulfur dioside and hydrosulfites)." The Dictionary of Paper, Third Edition, American Paper and Pulp Association, (New York, 1965) p. 70.
ISSUE:
What is the classification of Borol® solution, a liquid sodium borohydride product, under the HTSUS?
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. Additional U.S. Rule of Interpretation 1(a) states that “a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.”
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 HTSUS. See T.D. 89 80, 54 Fed. Reg. 35127 (August 23, 1989).
The following HTSUS headings are relevant to the classification of this product:
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:
EN 38.09 states, in pertinent part, the following:
This heading covers a wide range of products and preparations, of a kind generally used during processing or finishing of yarns, fabrics, paper, paperboard, leather or similar materials, not specified or included elsewhere in the Nomenclature.
They may be identified as falling in this heading because of their composition and presentation which give them a specific use in the industries cited in the heading and like industries, e.g., the textile floor carpeting industry, the vulcanised fibre manufacturing industry and the fur industry. Such products and preparations (e.g., textile softening agents) destined for domestic rather than industrial use are also covered by the heading.
Included here are:
* * * * * * *
(B) Products and preparations used in the paper, paperboard or like industries :
(1) Binders used to bind the pigment particles in the coating mixture. They are preparations based on natural products such as casein, starch, starch derivatives, soya protein, animal glue, alginates or cellulose derivatives.
(2) Sizing agents or sizing additives used in paper processing to improve printability, smoothness and gloss and to impart writing properties to the paper. These preparations may be based on rosin soaps, fortified resins, wax dispersions, paraffin dispersions, acrylic polymers, starch and carboxymethylcellulose or vegetable gum.
(3) Wet-strengthening agents. These preparations are used to increase tensile strength, tearing strength, bursting strength and resistance to abrasion of wet paper or nonwovens.
Heading 3809, HTSUS, is a principal use provision covering a wide range of products. The court in E.M. Chemicals v. United States, 923 F. Supp. 202 (Ct. Int'l Trade,1996) explained the application of principal use provisions thus: "[w]hen 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 U.S. Rule of Interpretation 1 to the HTSUS." EN 38.09 specifically includes binders, sizing agents and wet-strengthening agents as those products "of a kind used in the paper industry."
Kirk-Othmer, supra, contains a description of papermaking additives. It characterizes such additives as either process aids, functional internal additives, or functional surface treatments. Id. at 1447-9. Binders are listed as functional surface treatments and wet-strengthening agents and sizing agents are listed as functional internal additives. Bleach or LSBH products are not listed, but appear to be process aids. HQ 950801, dated April 9, 1992, classified a defoamer, listed as a process aid in Kirk-Othmer, in heading 3809, HTSUS. Hence, LSBH products such as Borol® solution, belong to the class or kind of goods that are used in the paper industry. As such, Borol® solution is more specifically provided for in heading 3809 than in heading 3824, HTSUS.
HOLDING:
Borol® solution is classified in subheading 3809.92.50, HTSUS, the provision for "[f]inishing 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: [o]f a kind used in the paper or like industries: [o]ther."
EFFECT ON OTHER RULINGS:
NY D88824 is revoked.
In accordance with 19 U.S.C. §1625(c)(1), this ruling will become effective 60 days after its publication in the CUSTOMS BULLETIN.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division