CLA-2 RR:CR:GC 961541 MGM
Port Director
U.S. Customs Service
1 E. Bay St.
Savannah, GA 31401
Re: Protest 1703-98-100010; “Dehydran 1208" defoamer
Dear Port Director:
This is our decision on protest 1703-98-100010, concerning your classification of the “Dehydran 1208" industrial defoamer under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The protestant states that “Dehydran 1208" is a solution of vinyl polymer and silcone oil in mineral spirits, an organic solvent. The weight of the mineral spirits exceeds 50% of the weight of the solution.
The entry whose classification is here protested was made April 28, 1997, and liquidated December 5, 1997. A protest was timely filed March 4, 1998.
ISSUE:
Whether “Dehydran 1208" defoamer is classified in heading 3208, 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 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.
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. 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 HTSUSA. See, T.D. 89 80, 54 Fed. Reg. 35127 (August 23, 1989).
The following headings are relevant to the classification of this product:
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:
3208.10.00 Based on polyesters
3208.20.00 Based on acrylic or vinyl polymers
3208.90.00 Other
* * * * * * * * * * * *
3905 Polymers of vinyl acetate or of other vinyl esters, in primary forms; other vinyl polymers in primary forms:
* * * * * * * * * * * *
3910 Silicones in primary forms
** * * * * * * * * * * *
Customs classified this merchandise in subheading 3208.90.00, HTSUS, as a solution defined in Note 4, Chapter 32. This Note states “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.” Solutions meeting this requirement which are composed of more than one of the products specified in headings 3901 to 3913 are included in heading 3208, HTSUS. EN 32.08 (C). This solution contains a vinyl polymer, specified in heading 3905, HTSUS, and silicone oil, specified in heading 3910, HTSUS, in an organic solvent.
Protestant contends that this product is not described by Note 4, Chapter 32, because mineral spirits are not a “volatile” organic solvent. “The expression ‘volatile organic solvents’ also includes solvents having a relatively high boiling point, e.g., turpentine.” EN 32.08 (C). The term “turpentine” can refer to an oleoresin or to a volatile oil found in this oleoresin. Merck Index, 12th ed.; Van Nostrand’s Scientific Encyclopedia, 5th ed., 1911. Turpentine oleoresin (CAS 9005-90-7) is the sticky juice, or pitch, which exudes from several of the native pines of the southeastern United States when the tree’s bark is gouged. On exposure to air, the volatile oil in the pitch gradually evaporates, leaving behind a resin which forms a protective coating over the wound. This volatile oil is known as oil of turpentine (CAS 8006-64-2), or in the paint trade, simply as turpentine. Van Nostrand’s at 1911. As the oleoresin is too thick and viscous to serve as a solvent, we construe the term “turpentine” to refer to oil of turpentine. The distillation range of oil of turpentine is reported as 154-170?C in the Merck Index, 12th ed., and 150-170?C in Gardner, Physical and Chemical Examination of Paints, Varnishes, Lacquers, Colors, 7th ed. 1935, A1409. This is generally comparable to the reported distillation range of mineral spirits (CAS Nos. 64475-85-0 and 8032-32-4), also called petroleum spirits; 149-213?C, Merck Index 12th ed., and approximately 150-205?C, Guthrie, Petroleum Products Handbook 1st ed. 1960, 11-15. The rates of evaporation are also comparable. One-half of a quantity of turpentine will evaporate in 30 minutes while the same amount of mineral spirits will evaporate in 45 minutes. Gardner at 825. Further, mineral spirits and turpentine are used to serve the same functions. One source states “The most important volatile paint and varnish thinners are petroleum (mineral) spirits and turpentine.” Gardner at 798. The Merck Index, under the heading for mineral spirits, includes the synonym “turpentine substitutes.” Thus, mineral spirits are similar to turpentine and are a “volatile organic solvent” within the meaning of Note 4, Chapter 32.
Within heading 3208, HTSUS, the provision for solutions based on polyesters does not describe the merchandise at issue because it does not contain polyesters. Although “Dehydran 1208" does contain a vinyl polymer, the provision for solutions based on acrylic or vinyl polymers is also inappropriate because the solution is based on both the vinyl polymer and silicone oil. The merchandise therefore falls within the residual subheading of heading 3208, HTSUS.
HOLDING:
The protest should be denied. “Dehydran 1208" defoamer is classified in subheading 3208.90.00, HTSUS.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division