OT:RR:CTF:CPMM H303930 KSG
CEE Director,
Pharmaceuticals, Health and Chemicals Center for Excellence
1100 Raymond Boulevard
Newark, NJ 07730
Attn: Tracy Coffield, Import Specialist
RE: Tariff classification of Howes Diesel Treat; additive for mineral oil
Dear Director:
This letter is in reference to your request for Internal Advice regarding the tariff classification of Howes Diesel Treat under the Harmonized Tariff Schedule of the United States (HTSUS). At the request of counsel, a conference was held by telephone on June 24, 2020. A submission submitted via email by counsel on July 6, 2020, was reviewed and is part of the file in this case.
FACTS:
This case involves Howes Diesel Treat, a diesel conditioner and anti-gel designed to correct the inherent problems with ultra-low sulfur diesel (ULSD). It prevents diesel fuel from gelling, cleans and lubricates fuel injectors, removes water from diesel fuel, eliminates smoking and compensates for lower BTU's by improving combustion, resulting in more power and better fuel economy. In the additives package that is included in this product, the pour point depressant additive (anti-gelling additive) is predominant. By the nature of the retail packaging, it is designed to be poured into a diesel fuel tank of a vehicle that already contains diesel fuel.
This product contains more than 70 percent by weight of petroleum oils. The additives package includes a pour point depressant, a detergent and a lubricity package. The pour point depressant is the predominate additive. A detergent additive and a lubricant additive are of lesser quantity than the pour point depressant. Howe's Diesel Treat is designed to be poured into a fuel tank containing diesel fuel.
ISSUE:
Whether Howes Diesel Treat is classified in heading 2710 as a petroleum oil or in heading 3811 as an additive for mineral oils.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined 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 headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS headings under consideration are the following:
2710 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; waste oils:
3811 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:
The EN for heading 3811 provides, in pertinent part, as follows:
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.
(A) Prepared additives for mineral oils.
Additives for crude oils. This group includes anticorrosives which are added to crude oils to protect metal structures (in particular, distillation columns). Their active constituents are generally amino type substances derived in particular from imidazoline.
Additives for gasoline (petrol). This group includes :
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Additives for lubricating oils. This group includes:
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(b) Pour point depressants, which prevent the aggregation of crystals at low temperatures. The products of this category are based on polymers of ethylene, on vinyl esters and ethers or on acrylic esters.
Those lubricating preparations intended to be added in small quantities to motor fuels or lubricants, for example, for reducing wear on engine cylinders, are excluded (heading 27.10 or 34.03).
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4. Additives for other mineral oils. This group includes :
Pour point depressants, similar to those used for lubricants as in 3 (b) above.
Oxidation inhibitors. These are similar to those used for gasoline (petrol).
Cetane number improvers for gas oil, for example those based on alkyl nitrates and alkyl nitrites.
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When terms are not defined in the HTSUS or the EN's, they are construed in accordance with their common and commercial meanings, which are presumed to be the same. In determining the common meaning of a term in the tariff, courts may and do consult dictionaries, scientific authorities and other reliable sources of information. Nippon Kogaku (USA), Inc. v. U.S., 673 F.2d 380 (C.C.P.A. 1982).
Heading 2710, provides for “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.” It is clear from the language of this heading, only preparations which are not elsewhere specified or included can be classified here. In order to be classified in heading 2710, we must first determine if the instant product is more specifically provided for elsewhere in the tariff schedule.
Hence, we first must examine heading 3811, HTSUS. Counsel for Howes Lubricator argues that diesel fuel is not a mineral oil or other liquid used for the same purpose as mineral oils.
The term "mineral oil" is not defined in the HTSUS or in the EN. The Chemicool Dictionary states mineral oil is any oil refinery product that is liquid at room temperature, such as gasoline, kerosene, diesel, fuel oil, or lubricating oil." See https: //www. chemicool.com/definition/mineral_oils.html. The Merriam-Webster dictionary defines mineral oil as "an oil of mineral origin; especially a refined petroleum oil used especially as a laxative." See https://www.merriam- webster.com /dictionary/mineral%20oil. "Mineral oil" is defined in the Collins Dictionary as (1) any oil found in the rock strata of the earth; specif., petroleum; (2) any colorless, tasteless oil derived from petroleum and used as a laxative. See https://collinsdictionary.com/us/dictionary/english/mineral-oil.
Diesel is an oil derived from mineral origin (petroleum). Based on the dictionary definitions for heading 3811, the term "mineral oil" is a broad term that encompass a wide range of petroleum products, which could be any oil refinery product that is liquid at room temperature or any oil found in the rock strata of the earth. This would include diesel fuel.
Moreover, a broad definition of mineral oil is supported by the EN to heading 38.11. The EN 38.11 (A) lists a number of different types of mineral oils for which additives thereto are included in the heading. For instance, it lists, crude oils, gasoline, (petrol), lubricating oils, and other mineral oils including Cetane number improvers. See EN 4(c). A cetane number improver is only relevant for diesel fuel since a minimum cetane number is specified in the ASTM D975 Standard Specification for Diesel Fuel.. Inclusion of the cetane number improver in the EN illustrates that diesel fuel is intended to be included in the heading. We conclude that diesel is a mineral oil within the meaning of heading 3811, HTSUS.
Diesel Treat is a prepared additive for mineral oils; it is a blend of several additives that eliminate or reduce undesirable properties and impart or enhance desirable properties of diesel fuel. It is added to the primary fuel (diesel oil). The additives in Diesel Treat allow it to perform its unique functions. It is a complex blend of several additives, with the anti-gelling additive predominant.
Pour point depressants, listed in EN 38.11 (A)(3)(b) and (4)(a), prevent the aggregation of crystals at low temperatures. Diesel Treat does exactly this. It prevents wax particles in fuel from binding together and lowers the temperature at which fuel will pour. It imparts the wax property of diesel fuel and enhance diesel fuel to fight gelling in colder climates. Counsel concedes that Diesel Treat is "principally a diesel conditioner and anti-gel" that can also act as a fuel lubricator. Diesel Treat is described on the Howes website as "proven to fight gelling in even the coldest weather." https://www.howeslube.com/products/diesel-treat.
The predominating additive in Diesel Treat is a pour point depressant additive for lubricating oil, which is included as an example in the EN for goods of heading 3811. Detergent additive is also specifically included in the EN. Although the Diesel Treat additive package contains a lubricity package, it is not the predominant or sole function of the product. Diesel Treat is more than a lubricity package and is thus not excluded from the heading under EN 38.11.
Counsel cited to NY N250881, dated March 31, 2014, as a similar article to Diesel Treat that was classified in subheading 2710.19.30, HTSUS. However, the Quartz products Quartz INEO and Quartz 9000 are different from Diesel Treat. The Quartz products are first and foremost primary lubricating oils. They are designed as lubricating motor oils to go into the crankcase of a gasoline engine and be compatible with three-way catalytic converters and particulate filters. Diesel Treat is a diesel fuel oil additive that does not consist primarily of lubricating oil.
Counsel also cited to NY N274695, dated May 11, 2016, as a similar article to Diesel Treat. This case involved marine oil which is described as 95% petroleum and about 5% additives. It is also different from diesel treat as it is first and foremost a primary lubricating oil. The Navigo oils are lubricating oils that go into the crankcase of a diesel motor while Diesel Treat is an additive for diesel fuel oil that goes into the diesel fuel tank of a diesel engine.
Based on the above, we find that Diesel Treat is a specially prepared additive for diesel fuel and therefore, properly classified in heading 3811, HTSUS, pursuant to
GRI 1. Based on these considerations, Diesel Treat is classified in heading 3811, HTSUS as a prepared additive for mineral oil. In accordance with GRI 6, Diesel Treat is classified in subheading 3811.90.00, HTSUS, which 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: Other."
HOLDING:
Pursuant to GRI's 1 and 6, Diesel Treat is classified in subheading 3811.90.00, HTSUS. The column one general rate of duty is 6.5%.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided for at www.usitc.gov.
You are directed to mail this decision to the Internal Advice applicant no later than 60 days from the date of this letter. On that date, CBP will make the decision available to CBP personnel and the public via www.cbp.gov, the Freedom of Information Act, and other methods of public distribution.
Sincerely,
for
Craig T. Clark, Director
Commercial and Trade Facilitation Division
CC: NIS Fei Chen and NIS Christina Allen, NCSD