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HQ 966070




February 27, 2003

CLA-2 RR:CR:GC 966070AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 3824.90.28

John B. Pellegrini
Ross & Hardies
65 East 55th St.
New York, NY 10022-3219

RE: New York ruling letter I83691; Ink Vehicle, HPV-244FT

Dear Mr. Pellegrini:

This is our decision regarding your letter, dated November 21, 2002, requesting reconsideration of New York Ruling Letter (NY) I83691, dated November 5, 2002, regarding the tariff classification, pursuant to the Harmonized Tariff Schedule of the United States (HTSUS), of an “Ink Vehicle,” product code HPV-244FT.

FACTS:

The merchandise, an “Ink Vehicle,” product code HPV-244FT, is a proprietary “chemical preparation containing rosin and resin acid derivatives (phenol modified rosin esters and hybrid rosin esters), alkali refined linseed oil, linseed alkyd, and mineral oil.” Customs Laboratory Report #NY20020795S, dated October 31, 2002. Clarification with Customs Laboratory confirmed that the preparation contains rosin derivatives but does not contain rosin or resin acids. “The product does contain 5% or more of an aromatic substance.” Id. The ink vehicle is used in the formulation of printing ink.

The product was classified in NY I83691 in subheading 3824.90.28, HTSUS, the provision for “[p]repared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included: [o]ther: [o]ther: [m]ixtures containing 5 percent or more by weight of one or more aromatic or modified aromatic substances: [o]ther.” You request consideration of subheading 3807.00.00, HTSUS, the provision for "[w]ood tar; wood tar oils; wood creosote; wood naphtha; vegetable pitch; brewers' pitch and similar preparations based on rosin, resin acids or on vegetable pitch," because you believe the product is similar to brewers' pitch.

ISSUE:

Whether an “Ink Vehicle,” product code HPV-244FT, can be described as “brewers' pitch and similar preparations based on rosin, resin acids or on vegetable pitch?”

LAW AND ANALYSIS:

Merchandise imported into the United States 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 for all purposes.

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 HTSUS headings under consideration are as follows:

3807: Wood tar; wood tar oils; wood creosote; wood naphtha; vegetable pitch; brewers' pitch and similar preparations based on rosin, resin acids or on vegetable pitch

3824: Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included:

EN 38.07 states, in pertinent part, the following:

The products classified here are:

(D) Brewers’ pitch and similar preparations based on rosin, resin acids or on vegetable pitch.

(1) Brewers’ pitch is used hot for coating beer-barrels. It is usually obtained by melting mixtures of rosin, paraffin wax and rosin oil, or mixtures of rosin and vegetable oils (such as linseed oil, cotton-seed oil or colza oil).

(2) Cobblers’ wax is used for waxing yarns and twine for sewing footwear and harness-makers’ wares, and normally consists of a mixture of rosin, rosin oil, paraffin wax, ozokerite, etc., and contains powdered inorganic substances (such as talc or kaolin). It is usually in the form of blocks, sticks or discs.

(3) Caulking pitch is used for caulking ships and is generally prepared by fusing a mixture of wood pitch, wood tar and rosin.

This heading does not cover:

Natural Burgundy pitch (also known as “Vosges pitch”), a natural resin obtained from certain coniferous trees, and yellow pitch which is natural Burgundy pitch purified by fusion and filtering (heading 13.01).

Stearin pitch (stearic pitch), wool grease pitch and glycerol pitch (heading 15.22).

(c) Mineral pitch from coal, peat, petroleum, etc. (Chapter 27).

Methanol (methyl alcohol), pure or commercially pure, or other separate chemically defined products obtained by redistilling or further treating the primary products of wood distillation, e.g., acetic acid, acetone, guaiacol, formaldehyde, acetates, etc. (Chapter 29).

(e) Sealing wax (heading 32.14 or 34.04).

Residual lyes from the manufacture of wood pulp (heading 38.04).

The term “based on,” in heading 3807, HTSUS, refers to the basic constituents of a preparation. All of the examples in the ENs contain rosin or resin acids or vegetable pitch. All of the specifically excluded preparations in the ENs do not contain rosin or resin acids or vegetable pitch. The instant preparation consists of derivatives of rosin and resin acids that do not contain the alcohol group found in rosin. Hence, the chemical composition of rosin and resin acids is not present in the instant merchandise. Unlike brewers' pitch, the instant preparation does not contain rosin, resin acids or vegetable pitch and therefore cannot be “based on” any of these ingredients. Hence, the instant merchandise does not fall within the scope of "brewers' pitch and similar preparation based on rosin" of heading 3807, HTSUS.

Therefore, we find that the “Ink Vehicle,” product code HPV-244FT, is classified in subheading 3824.90.28, HTSUS.

HOLDING:

The “Ink Vehicle,” product code HPV-244FT, is classified in subheading 3824.90.28, HTSUS, the provision for “[p]repared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included: [o]ther: [o]ther: [m]ixtures containing 5 percent or more by weight of one or more aromatic or modified aromatic substances: [o]ther.”

EFFECT ON OTHER RULINGS:

NY I83691 is affirmed.

Sincerely,

Myles B. Harmon, Director

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