HQ 0088381 - Decision on Application for Further Review of Protest No. 0401-90-000532, on the tariff classification of a synthetic diffusion pump fluid - United States International Trade Commision Rulings

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HQ 088381

June 28, 1991

CLA-2 CO:R:C:F RFC 088381

CATEGORY: CLASSIFICATION

TARIFF No.: 3823.90.2900

District Director of Customs
U.S. Customs Service
Thomas P. O'Neill, Jr. Federal Building
10 Causeway Street, Room 221
Boston, MA 02222-1052

RE: Decision on Application for Further Review of Protest No. 0401-90-000532, on the tariff classification of a synthetic diffusion pump fluid

Dear Sir:

This is a decision on application for further review of a protest timely filed on behalf of Varian Associates, Inc., on June 14, 1990, against your decision in the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a synthetic diffusion pump fluid known by the brand name "Neovac Sy." There were two entries of the product. The first entry was entered under entry number 110-1648762 on September 15, 1989 and liquidated on March 16, 1990. The second entry was entered under entry number 110-1649373 on November 28, 1989 and liquidated on March 23, 1990.

FACTS:

The product is described as a general-purpose diffusion pump fluid which consists of a mixture of monoalkyldiphenyl ethers with the alkyl group chain length of 12 to 18 carbon atoms. The product is considered to be a synthetic oil of the polyphenyl- ether type (Kirk-Othmer).

The product was developed to have a low-vapor pressure for use in diffusion pumps to create a vacuum. It is not a lubricating oil.

Customs classified the product under heading 3823 as "chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included." The importer contests this classification. It entered the product under heading 2710. In its protest, however, the importer contends that the product is classified under heading 2707.

ISSUE:

What is the proper tariff classification under the HTSUSA of a synthetic diffusion pump fluid consisting of a mixture of chemical compounds?

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 three headings under consideration shows that two chapters of the schedule are involved: chapter 27 and chapter 38. Chapter 27 covers "mineral fuels, mineral oils and products of their distillation" and "bituminous substances" and "mineral waxes." Guidance concerning the coverage of chapter 27 can be found in the general notes to the Explanatory Notes thereto:

The Chapter covers, in general, coal and other natural mineral fuels, petroleum oils and oils obtained from bituminous minerals, their distillation products, and products of a similar kind obtained by any other process. It also covers mineral waxes and natural bituminous substances. Goods of this Chapter may be crude or refined; however, with the exception of methane and propane, when they are separate chemically defined organic compounds in the pure or commercially pure state, they are to be classified in Chapter 29. For certain of these compounds (e.g., ethane, benzene, phenol, pyridine) there are specific purity criteria indicated in Explanatory Notes 29.01, 29.07 and 29.33. Methane and propane are classified in heading 27.11, even when pure.

See General Notes to the Explanatory Notes to Chapter 27 to the Harmonized Commodity Description and Coding System

A review of the above-listed paragraph shows that products consisting of separate chemically defined organic compounds or mixtures thereof in the pure or commercially pure state are not properly classified in chapter 27.

As indicated above, the importer has advanced two headings within chapter 27 for the classification of the instant product: 2707 and 2710. Heading 2707 provides for "oils and other products of the distillation of high temperature coal tar" and "similar products in which the weight of the aromatic constituents exceeds that of the nonaromatic constituents." On the other hand, heading 2710 provides for "petroleum oils and oils obtained from bituminous minerals, other than crude" and "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." Each of the terms of these two headings essentially provides for oils in crude form or products directly resulting from the distillation or refining of petroleum or coal tar. They do not provide for separate chemically defined organic compounds or mixtures thereof in the pure or commercially pure state. As indicated above, the instant product is a synthetic oil consisting of a mixture of refined chemical compounds. In light thereof, there can be not doubt that this product is not properly classified under either heading 2707 or 2710.

The third heading under consideration, as indicated above, in the instant classification analysis is heading 3823. It provides for, among other things, "chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included." In the instant case, the product consists of a mixture of chemical compounds that separately would be classified in chapter 29. Accordingly, the product, pursuant to GRI 1, is most specifically described by the terms of heading 3823. Therefore, it is properly classified thereunder.

HOLDING:

The above-described product is properly classified under subheading 3823.90.2900, HTSUSA, which provides for, among other things, chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included. The general rate of duty for the year 1989 is 3.7 cents/kg plus 13.6 ad valorem.

The protest should be denied in full. A copy of this decision only should be furnished to the protestant with the Form 19 notice of action. Original documents associated with these entries and the protest for further review are being returned to be retained in the files in the District, as appropriate.

Sincerely,

John Durant, Director
Commercial Rulings Division

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