CLA-2 OT:RR:CTF:TCM H274972 NCD
Mark K. Neville, Jr.
Smith, Gambrell & Russell, LLP
250 Park Avenue, Suite 1900
New York, NY 10177
RE: Revocation of NY N196797 and NY C85217; classification of Galaxolide® mixtures
Dear Mr. Neville, Jr.:
This is in reference to New York Ruling Letter (NY) N196797, issued to you by U.S. Customs and Border Protection (CBP) on February 3, 2012. We have reviewed NY N196797, which involved classification of Galaxolide® mixtures under the Harmonized Tariff Schedule of the United States (HTSUS), and determined that it is incorrect. For the reasons set forth below, we are revoking that ruling.
We have additionally reviewed NY C85217, dated March 18, 1998, which similarly involved classification of a Galaxolide® mixture under the HTSUS. As with NY N196797, we have determined that NY C85217 is incorrect and, for the reasons set forth below, are revoking it.
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, notice of the proposed action was published in the Customs Bulletin, Vol. 50, No. 27, on July 6, 2016. No comments were received in response to the notice.
FACTS:
Both NY N196797 and NY C85217 pertain to mixtures of Galaxolide®, whose chemical formula is depicted in Figure 1 below, dissolved in various solvents.
Figure 1
Specifically at issue in NY N196797 were Galaxolide® mixtures designated “Galaxolide® 50 DEP” and “Galaxolide® 66% IPM.” These products are described as follows in the ruling:
Galaxolide 50 DEP consists of Galaxolide dissolved in Diethyl phthalate, a fluidizer (solvent.) Galaxolide 66% IPM consists of Galaxolide dissolved in isopropyl myristate, a fluidizer (solvent.) The products are identical with the exception of the solvents. Based on Chapter Note 1(e) to Chapter 29, Galaxolide 50 DEP and Galaxolide 66% IPM are separate chemically defined organic compounds. Galaxolide, CAS No. 1222-05-5, is chemically known as Cyclopenta[g]-2-benzopyran, 1,3,4,6,7,8-hexahydro-4,6,6,7,8,8-hexamethyl-. The products are aromatic heterocyclic compounds with oxygen hetero-atoms indicated for use in the fragrance industry.
NY C85217 pertains to a Galaxolide® mixture designated “Galaxolide® 60 MIP,” which, according to the description in the ruling, “is used as a fragrance component.” MIP is the French acronym for isopropyl myristate.
All three products in NY N196797 and NY C85217 were classified in heading 2932, HTSUS. They were specifically classified in subheading 2932.99.70, HTSUS, which provides for: “Heterocyclic compounds with oxygen hetero-atom(s) only: Other: Other: Aromatic: Other: Other.”
ISSUE:
Whether the subject Galaxolide® mixtures are properly classified in heading 2932, HTSUS, as heterocyclic compounds with oxygen hetero-atom(s) only, or in heading 3302, HTSUS, as mixtures with a basis of one or more odoriferous substances, of a kind used in industry.
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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs 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, 35128 (August 23, 1989).
The 2016 HTSUS provisions under consideration are as follows:
2932 Heterocyclic compounds with oxygen hetero-atom(s) only:
Other:
2932.99 Other:
Aromatic:
Other
2932.99.70 Other
3302 Mixtures of odoriferous substances and mixtures (including alcoholic solutions) with a basis of one or more of these substances, of a kind used as raw materials in industry; other preparations based on odoriferous substances, of a kind used for the manufacture of beverages:
3302.90 Other:
3302.90.10 Containing no alcohol or not over 10 percent of alcohol by weight:
Heading 2932, HTSUS, provides for heterocyclic compounds with oxygen hetero-atom(s) only. Note 1 to Chapter 29 provides, in pertinent part, as follows:
Except where the context requires, the headings of this chapter apply only to:
Separate chemically defined organic compounds, whether or not containing impurities;
***
Products mentioned in (a), (b) or (c) above dissolved in other solvents provided that the solution constitutes a normal and necessary method of putting up these products adopted solely for reasons of safety or for transport and that the solvent does not render the product particularly suitable for specific use rather than for general use…
With respect to Note 1(a) to Chapter 29, the General EN to Chapter 29 states as follows:
A separate chemically defined compound is a substance which consists of one molecular species (e.g., covalent or ionic) whose composition is defined by a constant ratio of elements and can be represented by a definitive structural diagram. In a crystal lattice, the molecular species corresponds to the repeating unit cell.
The provisions in the General Explanatory Note to Chapter 28 concerning the addition of stabilisers, antidusting agents and colouring substances apply, mutatis mutandis, to the chemical compounds of this Chapter.
The General EN to Chapter 28 in turn states as follows:
Such elements and compounds are excluded from Chapter 28 when they are dissolved in solvents other than water, unless the solution constitutes a normal and necessary method of putting up these products adopted solely for reasons of safety or for transport (in which case the solvent must not render the product particularly suitable for some types of use rather than for general use).
The General EN to Chapter 29 defines “separate chemically defined compound” for purposes of Note 1 as a “substance…whose composition…can be represented by a definitive structural diagram.” Pursuant to Note 1(e) to Chapter 29, as explained in the General EN to Chapter 28, such compounds may be dissolved in non-aqueous solvents needed solely for safety or for transport. However, when the solvent enables or enhances the resulting solution’s end-use, or is otherwise added for reasons other than safety or transport, the solution falls outside the scope of Note 1(e) to Chapter 29. See, e.g., Headquarters Ruling Letter (HQ) 968018, dated January 9, 2006 (determining that Bitrex dissolved in propylene glycol did not meet the terms of Note 1(e) to Chapter 29 because Bitrex “is designed for human exposure and is not harmful” and the solution “is not necessary to put up or sell the product”); and HQ 965089, dated January 31, 2002 (excluding solution from heading 2922, HTSUS, where the solvent did not “enhance the safety of transportation” but instead “aid[ed] in the manufacture of the final product”).
The products at issue consist of Galaxolide®, a heterocyclic compound represented by a distinct structural diagram, dissolved in diethyl phthalate or in isopropyl myristate. Like other Galaxolide® mixtures, the instant products are incorporated as active ingredients in perfumes and other fragrance products. Our research indicates that diethyl phthalate and isopropyl myristate, both known diluents, are added to Galaxolide® for the express purpose of reducing the latter’s viscosity and rendering it in usable form for incorporation in perfumes. See Horst Surburg and Johannes Panten, Common Fragrance and Flavor Materials: Preparation, Properties and Uses (6th ed. 2016). Our research further indicates that diethyl phthalate also functions as a fixative, which is “a substance that prevents too rapid volatilization of the components of a perfume and tends to equalize…rates of volatization” and which “thus increases the odor life of a perfume and keeps the odor unchanged.” Richard J. Lewis, Sr., Hawley’s Condensed Chemical Dictionary 566-67 (15th ed. 2007); see also U.S. Food and Drug Admin., Phthalates, http://www.fda.gov/?Cosmetics/ProductsIngredients/Ingredients. American Chemistry Council, Diethyl Phthalate (DEP) in Cosmetics Deemed Safe, https://phthalates.americanchemistry.com/?Phthalates-Basics/Personal-Care-Products/Diethyl-Phthalate-DEP-in-Cosmetics-Deemed-Safe.html (last visited May 23, 2016). As such, neither additive enables or enhances the safe use or transportation of Galaxolide®, which can in fact be safely maintained or transported in its undiluted form. See NY C87142, dated May 11, 1998 (classifying Galaxolide® “neat”). Instead, these additives enable fabrication of the finished perfumes and, in the case of the Galaxolide® 50 DEP, extend these perfumes’ shelf lives. Consequently, neither product at issue is covered by Note 1(e) to Chapter 29. Because the subject products do not otherwise satisfy Note 1 to Chapter 29, they are excluded from heading 2932, HTSUS.
We next consider heading 3302, HTSUS, which applies, inter alia, to mixtures with a basis in one or more odoriferous substances, of a kind used as raw materials in the industry. Chapter Note 2 to Chapter 33 states as follows:
The expression "odoriferous substances" in heading 3302 refers only to the substances of heading 3301, to odoriferous constituents isolated from those substances or to synthetic aromatics.
With respect to “aromatics,” Additional U.S. Note 2(a) to Section Note VI states as follows:
For the purposes of the tariff schedule:
The term "aromatic" as applied to any chemical compound refers to such compound containing one or more fused or unfused benzene rings…
EN 33.02 states, in pertinent part, as follows:
This heading covers the following mixtures provided they are of a kind used as raw materials in the perfumery, food or drink industries (e.g., in confectionery, food or drink flavourings) or in other industries (e.g., soap-making):
***
Mixtures of one or more odoriferous substances (essential oils, resinoids, extracted oleoresins or synthetic aromatics) combined with added diluents or carriers such as vegetable oil, dextrose or starch…
Pursuant to Chapter Note 2 to Chapter 33, heading 3302, HTSUS, applies, inter alia, to synthetic aromatics, which are synthetic compounds containing at least one benzene ring, mixed with one or more substances. EN 33.02 states that the substances with which these synthetic aromatics may be mixed include diluents and carriers.
Galaxolide® is a synthetic substance that, according to its structural diagram, contains the requisite benzene ring of an aromatic compound within the meaning of Additional U.S. Note 2(a) to Section Note VI. See U.S. Patent No. 4,162,256 (issued July 24, 1979). It can therefore be described as a “synthetic aromatic” and, in effect, as an “odoriferous substance” within the meaning of Note 2 to Chapter 33. Because the instant products are mixtures consisting of an odoriferous substance and diluents, and because they are used as raw materials for perfumery products, they are described by EN 33.02 as examples of products classifiable in heading 3302. Consequently, we find that the instant products are properly classified in heading 3302, HTSUS, as mixtures with bases in an odoriferous substance, of a kind used as raw materials in the industry.
HOLDING:
By application of GRI 1, the subject Galaxolide® mixtures are properly classified in heading 3302, HTSUS. They are specifically classified in subheading 3302.90.1050, HTSUSA (Annotated), which provides for: “Mixtures of odoriferous substances and mixtures (including alcoholic solutions) with a basis of one or more of these substances, of a kind used as raw materials in industry; other preparations based on odoriferous substances, of a kind used for the manufacture of beverages: Other: Containing no alcohol or not over 10 percent of alcohol by weight: Other.” The 2016 column one general rate of duty is free.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
New York Ruling Letters N196797, dated February 3, 2012, and NY C85217, dated March 18, 1998, are hereby REVOKED in accordance with the above analysis.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division
CC: Daniel J. Gluck
Serko & Simon
One World Trade Center
New York, NY 10048