CLA-2 CO:R:C:F 088705 RFC
Mr. Cap Sparling
Ferrous Corporation
P.O. Box 1764
Bellevue, WA 98009
RE: Reconsideration of New York Ruling Letter (NYRL) 858227
Dear Mr. Sparling:
This letter is in response to your letter of February 14,
1991, on behalf of Ferrous Corporation, requesting a
reconsideration of NYRL 858227. NYRL 858227 is dated January 9,
1991. It was issued under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA) and concerns certain fuel
additives.
FACTS:
There are two products. They are identified as "MP-3" and
"MP-4." Each product is described as a "combination combustion
catalyst and sludge dispersant." They are said to consist of a
blend of organic and organo-metallic compounds. The products are
used, among other things, as a fuel additive to minimize sludge
formation and corrosion and to improve the oxidation of fuels for
more complete combustion.
ISSUE:
What is the proper tariff classification under the HTSUSA of
a fuel additive consisting of a blend of organic and organo-
metallic compounds which is used to minimize sludge formation and
corrosion and to improve the oxidation of the fuel?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified
under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA). The tariff classification of merchandise
under the HTSUSA is governed by the principles set forth in the
General Rules of Interpretation (GRIs) and, in the absence of
special language or context which otherwise requires, by the
Additional U.S. Rules of Interpretation. The GRIs and the
Additional U.S. Rules of Interpretation are part of the HTSUSA
and are to be considered statutory provisions of law for all
purposes. See Sections 1204(a) and 1204(c) of the Omnibus Trade
and Competitiveness Act of 1988 (19 U.S.C. 1204(a) and 1204(c)).
GRI 1 requires that classification be determined first
according to the terms of the headings of the tariff schedule
(i.e., (1) merchandise is to be classified under the 4-digit
heading that most specifically describes the merchandise; (2)
only 4-digit headings are comparable; and (3) merchandise must
first satisfy the provisions of a 4-digit heading before
consideration is given to classification under a subheading
within this 4-digit heading) and any relative section or chapter
notes and, provided such headings or notes do not otherwise
require, then according to the other GRIs.
GRI 6 prescribes that, for legal purposes, GRIs 1 to 5 shall
govern, mutatis mutandis, classification at subheading levels
within the same heading. Therefore, merchandise is to be
classified at equal subheading levels (i.e., at the same digit
level) within the same 4-digit heading under the subheading that
most specifically describes or identifies the merchandise.
The Explanatory Notes to the Harmonized Commodity
Description and Coding System (hereinafter "Harmonized System")
represent the official interpretation of the Customs Cooperation
Council on the scope of each heading. See H.R. Conf. Rep. No.
100-576, 100th Cong., 2d Sess. 549 (1988); 23 Customs Bulletin
No. 36, 3 (T.D. 89-90, September 6, 1989), 59 F.R. 35127 (August
23, 1989). Although not binding on the contracting parties to
the Harmonized System Convention or considered to be dispositive
in the interpretation of the Harmonized System, the Explanatory
Notes should be consulted on the proper scope of the Harmonized
System. Id.
A review of the schedule and of the classifications proposed
by the importer shows that two chapters merit consideration in
the instant analysis: chapter 27 and chapter 38. Chapter 27
provides for "mineral fuels, mineral oils and products of their
distillation" and "bituminous substances" and "mineral waxes."
In this chapter, the importer has proposed that the instant
products are properly classified under heading 2710. A review of
the terms of this heading, however, shows this proposition to be
incorrect. Heading 2710 provides for the following:
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.
As the instant products are not merely "petroleum oils and oils
obtained from bituminous minerals, other than crude," to be
classified under heading 2710, pursuant to GRI 1, the products
would have to be most specifically described by the second
article description in this heading. To be classified under this
second article description, of course, the terms of no other
heading in the schedule can adequately describe the products
(i.e., "preparations not elsewhere specified or included").
Guidance concerning the coverage of heading 2710 can be
found in the Explanatory Notes thereto. Of special significance
from these notes is the following paragraph:
[Heading 2710 does not include] [p]reparations containing
petroleum oils or oils obtained from bituminous minerals in
any proportion (even exceeding 70 % by weight) covered by a
more specific heading in the Nomenclature or based on
products other than petroleum oils or oils obtained from
bituminous minerals. This is the case with the anti-rust
preparations of heading 34.03, which consist of lanolin in
solution in white spirit, the lanolin being the basic
material and the white spirit acting merely as a solvent and
evaporating after application. It is also the case with
disinfecting, insecticidal, fungicidal, etc., preparations
(heading 38.08), prepared additives for mineral oils
(heading 38.11), composite solvents and thinners for
varnishes (heading 38.14) and certain preparations of
heading 38.23, such as starting fluid for petrol (gasoline)
engines, the fluid consisting of diethyl ether, 70 % or more
by weight of petroleum oils and also other constituents, the
diethyl ether being the basic constituent.
See Explanatory Notes to Heading 2710 to the Harmonized Commodity
Description and Coding System.
A review of the second article description to heading 2710 and
the above-listed Explanatory Note thereto shows that the instant
products are not properly classified under heading 2710. First,
as the oil in the instant products merely serves as a carrier
for the other ingredients, the products are based on products
other than the petroleum oils or oils obtained from bituminous
minerals. Therefore, heading 2710 is not a proper heading for
classification of the products on this ground alone. Moreover,
as shown below, the products are more specifically provided for
elsewhere in the schedule.
The second chapter, as indicated above, that merits
consideration in the instant classification analysis is chapter
38. Chapter 38 covers "miscellaneous chemicals products." In
this chapter, two headings merit consideration: heading 3811 and
3815 (the second heading proposed by the importer). Heading 3815
provides for "reaction initiators, reaction accelerators and
catalytic preparations, not elsewhere specified or included."
The importer contends that the instant products are properly
classified under this heading as "catalytic preparations." Of
course, classification under heading 3815 would only occur if the
terms of no other heading in the schedule adequately describe the
instant products (i.e., "not elsewhere specified or included").
A careful analysis of the instant products and of heading
3815 shows this heading to be an inappropriate one for the
classification of the products. First, a basic and fundamental
property or characteristic of "catalysts" is that they affect the
rate of a chemical change without being consumed or undergoing a
chemical change. See Hawley's Condensed Chemical Dictionary
230-32 (1987) (a catalyst is "[a]ny substance of which a
fractional percentage notably affects the rate of a chemical
reaction without itself being consumed or undergoing a chemical
change"); Van Nostrand Reinhold Encyclopedia of Chemistry 180
(1984) (a catalysis involves "[t]he process of changing the
velocity of a chemical reaction by the presence of a substance
that remains apparently chemically unaffected throughout the
reaction"); The Random House Dictionary of the English Language
231 (1983) (a catalysis involves "[t]he causing or accelerating
of a chemical change by the addition of a substance which is not
permanently affected by the reaction"). As the instant products
are used as a fuel additive and the fuel is burned as part of the
reaction, the products most certainly do not affect the rate of a
chemical change in the fuel without being consumed or undergoing
a chemical change. Second, assuming for purposes of
argumentation that the products could satisfy the definition of a
catalyst, as shown below, they are more specifically described
elsewhere in the schedule.
The second heading in chapter 38, as indicated above, under
which the instant products may be classified is heading 3811.
This heading provides for "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." Guidance concerning the coverage of
this heading can be found in the Explanatory Notes thereto:
The preparations of this heading are additives for mineral
oils or for other liquids used for the same purposes to
eliminate or reduce undesirable properties, or to impart or
enhance desirable properties.
See Explanatory Notes to Heading 3811 to the Harmonized Commodity
Description and Coding System.
A review of the terms of heading 3811 and of the above-listed
Explanatory Note thereto clearly shows that the instant products
are properly classified under this heading. Both of the
products are "prepared additives for mineral oils" whose purposes
are to eliminate or to reduce undesirable properties and to
impart or to enhance desirable properties. Accordingly, both of
the products are properly classified under heading 3811.
HOLDING:
Both of the above-described products are properly classified
under subheading 3811.90.0000, HTSUSA, which provides for
antiknock preparations, oxidation inhibitors, gum inhibitors,
viscosity improvers, anticorrosive preparations and other
prepared additives, for mineral oils (including gasoline) or for
other liquids used for the same purposes as mineral oils, other.
The general rate of duty for goods entered under the above-
listed subheading is 3.7 cents/kg plus 13.6 percent ad valorem.
In light of the above, NYRL 858227 is hereby affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division