CLA-2 RR:CR:GC 962661 MGM
Port Director
U.S. Customs Service
150 N. Royal St.
RM 3004
Mobile, AL 36602
Re: Protest 1901-98-100016; Rosin
Dear Port Director:
This is our decision regarding Protest 1901-98-100016, concerning your classification of rosin derived from pine tree oleoresin, under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The imported merchandise is derived from pine tree exudate, also known as pine oleoresin or sap. The protestant offers the following description of the process by which the merchandise is made. The sap is collected from slashes made in pine trees. It is then transported to a processing facility where it is dissolved in water and a small amount of turpentine “to increase its flow.” It can be stored in this state in tanks or in trenches in the ground. The sap is next filtered through screens to remove bark, debris, dirt and insects. It is then heated to 160? - 200? C “to remove excess water and to distill its turpentine content into a vapor which is drawn off and cooled to its liquid form.” The substance remaining after the distillation is poured into drums where it cools and solidifies. These drums are then imported into the United States.
Customs Laboratory Report 5-95-21338, dated October 13, 1995, states that “[t]he sample, translucent gold/amber, irregular-shaped, friable lumps and powder, has the characteristics of gum (wood) rosin (the resin remaining after distillation of the volatile oil from the oleoresin obtained from pine trees)....” The Customs Laboratory Report also states that the merchandise has the following characteristics: melting range, 76-106 degrees centigrade; acid value, 159; color, comparable to (or lighter than) WW grade. This is consistent with Customs Laboratory Reports 5-95-20565, dated March 28, 1995, and 5-95-20730, dated May 31, 1995, as well as with the protestant’s description.
The merchandise was entered between February and August 1995, under subheading 1301.90.90, HTSUS, which provides for resins and oleoresins. The entries were liquidated June 5, 1998, with classification under subheading 3806.10.00, HTSUS, which provides for rosins. This classification was timely protested on August 28, 1998.
ISSUE:
Is the imported merchandise oleoresin of heading 1301, HTSUS, or rosin of heading 3806, 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 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 HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The merchandise was entered in subheading 1301.90.90, HTSUS. Heading 1301, HTSUS, provides as follows (ten-digit statistical annotations omitted):
1301 Lac; natural gums, resins, gum-resins and oleoresins (for example, balsams)
1301.10.00 Lac
1301.20.00 Gum Arabic
1301.90 Other
1301.90.40 Turpentine gum (oleoresinous exudate from living trees)
1301.90.90 Other.
This heading includes oleoresins which are defined by the American Society for Testing and Materials as “pine gum, the nonaqueous secretion of resin acids dissolved in a terpene hydrocarbon oil that is produced or exuded from the intercellular resin ducts of a living tree.” ASTM, D 804-92, Terminology Relating to Naval Stores, Including Tall Oil and Related Products. Similarly, The Condensed Chemical Dictionary defines oleoresin as “[a]ny of a number of mixtures of essential oils and resins characteristic of the tree or plant from which they are derived.” Hawley, The Condensed Chemical Dictionary, 10th ed. Thus, oleoresins have two components: resins and oil. In pine trees, this oil is called oil of turpentine or simply turpentine. Merck Index, 12th ed. The greater part of oil of turpentine distills between 154 - 170? C. Merck Index, 12th ed. The instant merchandise is heated to 160? - 200? C to remove the oil of turpentine. After the oil of turpentine is removed from the oleoresins, the remaining substance is termed rosin. Rosin is defined as the “[r]esidue left after distilling off the volatile oil from the oleoresin obtained from Pinus palustris and other species of Pinus, Pinaceae,” Merck Index, 12th ed., or alternately “a specific kind of natural resin obtained as a vitreous water-insoluble material from pine oleoresin by removal of the volatile oils,” ASTM, D 804-92, Terminology Relating to Naval Stores, Including Tall Oil and Related Products.
Rosin is specifically excluded from heading 1301, HTSUS. See ENs at 96-97 (“The heading also excludes:...rosin”). In addition, rosin is specifically included in heading 3806, HTSUS, which provides as follows (ten-digit statistical annotations omitted):
3806 Rosin and resin acids, and derivatives thereof; rosin spirit and rosin oils; run gums
3806.10.00 Rosin and resin acids
3806.20.00 Salts of rosin, of resin acids or of derivatives of rosin or resin acids, other than salts of rosin adducts
3806.30.00 Ester gums
3806.90.00 Other.
Protestant argues that the phrase “rosin and resin acids” is ambiguous in that it could mean “rosin acids and resin acids” or “rosin” and “rosin acids.” However the ENs indicate that heading 3806 encompasses rosin. For example, EN 13.01 states “[t]he heading also excludes:...(g) [r]osin, resin acids, rosin spirit and rosin oils, resinates, rosin pitch, brewers’ pitch and similar preparations based on rosin (Chapter 38).” The placement of the comma between rosin and resin acids indicates that the two are to be treated separately. Further, EN 38.06 (A) states that “Rosin and resin acids are obtained by the following processes: (1) [s]eparation of volatile terpenic products (spirits of turpentine and similar terpenic solvents) during the distillation of oleoresinous matter obtained in the form of an exudate from pine or other coniferous trees.” As this is the manner in which the instant merchandise is obtained, it falls within heading 3806, HTSUS.
In addition, protestant relies upon United States v. Sheldon & Co., 2 U.S.Cust.App. 485 (1912). In that case, the court held that merchandise similar to the instant merchandise was classified as “gum resin crude, not advanced in value or condition by any process or treatment whatever beyond that essential to the proper packing of the drugs and the prevention of decay or deterioration pending manufacture.” In reaching this conclusion, the court stated that “[t]he terms ‘resin’ and ‘rosin’ seem to be used, commercially at least, interchangeably.” This is clearly not the intent of the HTSUS. “Resins” and “oleoresins” are specifically provided for in heading 1301, HTSUS, while “rosin” is specifically provided for in heading 3806, HTSUS.
HOLDING:
Rosin derived from pine trees is classified in subheading 3806.10.00, HTSUS. Since the rate of duty under the classification indicated above is more than the liquidated rate, you should deny the protest in full.
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