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HQ 967381




January 31, 2005

CLA-2 RR:CR:GC 967381AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 3202.10.10

Port Director
Customs and Border Protection
50 S. Main Street, Suite 100R
St. Albans, VT 05478

RE: Protest 0201-04-100029; Penetrator 7312 (Floretan GA)

Dear Port Director:

This is our decision on Protest 0201-04-100029, filed by the importer, Union Specialties Inc., against your decision in the classification of Penetrator 7312 (Floretan GA), under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

Penetrator 7312 (Floretan GA) has the chemical name Naphtalene Sulphonic acid polymer with Formaldehyde, Sodium Salt and is assigned CAS # 9084-06-04. In the argument attached to a letter, dated June 8, 2004, from the importer to the agent filing the protest, Protestant states, in pertinent part, that:

Floretan GA is the sodium salt of condensed naphthalene sulfonic acid and products of this nature are commonly referred to in the leather industry as ‘naphthalene syntans’. . . . The naphthalene syntan . . . will aid in the brightening of the color and the penetration of dyes.

Customs Laboratory Report CH20010054, dated February 14, 2001, states, in pertinent part, “[T]his sample of tan powder is the condensation product of formaldehyde with naphthalenesulphonic acid, an aromatic synthetic organic tanning substance.” The Material Safety Data Sheet (MSDS) submitted with the protest states the useage of the product as a “tannery retannage agent.”

Protestant entered the merchandise in June and July of 2000, under subheading 2908.20.04, HTSUS, the provision for “Halogenated, sulfonated, nitrated or nitrosated derivatives of phenols or phenol-alcohols: Derivatives containing only sulfo groups, their salts and esters: . . . 1-Naphthol-3,6-disulfonic acid; and 2-Naphthol-3,6-disulfonic acid and its salts.”

The two entries which are the subject of this protest were both liquidated on April 2, 2004, under subheading 3202.10.10, HTSUS, the provision for “Synthetic organic tanning substances; inorganic tanning substances; tanning preparations, whether or not containing natural tanning substances; enzymatic preparations for pre-tanning: Synthetic organic tanning substances: Aromatic or modified aromatic.” The instant protest was timely filed on June 28, 2004.

ISSUE:

Whether the subject merchandise is classified in heading 2908, HTSUS, as “Halogenated, sulfonated, nitrated or nitrosated derivatives of phenols or phenol-alcohols,” or in heading 3202, HTSUS, as “Synthetic organic tanning substances; inorganic tanning substances; tanning preparations, whether or not containing natural tanning substances; enzymatic preparations for pre-tanning.”

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 their appropriate 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). “Additionally, in determining whether an item is properly classified under a particular heading in the HTSUS, the Explanatory Notes are persuasive authority for the Court when they specifically include or exclude an item from a tariff heading.” H.I.M./Fathom, Inc. v. United States, 981 F. Supp. 610, 613, 21 Ct. Int'l Trade 776 (1997).

The HTSUS provisions under consideration are the following:

2908: Halogenated, sulfonated, nitrated or nitrosated derivatives of phenols or phenol-alcohols:

2908.20: Derivatives containing only sulfo groups, their salts and esters:

2908.20.04: 2,5-Dihydroxybenzenesulfonic acid, potassium salt; 3,6-Dihydroxy-2,7-naphthalenedisulfonic acid; 3,6-Dihydroxy-2,7-naphthalenedisulfonic acid, sodium salt; 4-Hydroxy-1-naphthalenesulfonic acid, sodium salt; 1-Naphthol-3,6-disulfonic acid; and
2-Naphthol-3,6-disulfonic acid and its salts

3202: Synthetic organic tanning substances; inorganic tanning substances; tanning preparations, whether or not containing natural tanning substances; enzymatic preparations for pre-tanning:

3202.10 Synthetic organic tanning substances:

3202.10.10 Aromatic or modified aromatic

Chapter note 1 to Chapter 29 states, in pertinent part, the following:

Except where the context otherwise requires, the headings of this chapter apply only to:

(a) Separate chemically defined organic compounds, whether or not containing impurities;

EN 32.02 states, in pertinent part, as follows:

This heading includes:
(I) Tanning products.
Provided they do not constitute separate chemically defined compounds of Chapter 28 or 29, the tanning products of this heading include:

(A) Synthetic organic tanning substances (sometimes known as “syntans”).

These are products which, though they can be used alone to tan leather to a pale colour, are more frequently mixed or used in conjunction with natural tanning materials to assist their penetration into the skins. They include:

(1) Aromatic suntans such as condensation products of formaldehyde with phenol cresol- or naphthalenesulphonic acids; sulphonated aromatic hydrocarbons of high molecular weight; polysulphonamides and polyhydroxypolyarylsulphone-sulphonic acids.

Protestant states that heading 2908, HTSUS, more specifically describes the merchandise than does heading 3202, HTSUS. Protestant is incorrect in this assertion.

Heading 2908, HTSUS, does not describe this product because it is not a separate chemically defined compound as mandated by chapter note 1(a) to Chapter 29. The instant merchandise is the condensation product of formaldehyde with naphthalenesulphonic acid (Laboratory Report CH20010054). As such, it is a preparation containing more than one chemically defined compound.

Protestant’s statement that heading 2908, HTSUS, describes the merchandise because the chemical formula is listed in subheading 2908.20.04, HTSUS, is incorrect. Subheading 2908.20.04, HTSUS, specifically describes the separately defined chemical compounds “1-Naphthol-3,6-disulfonic acid; and 2-Naphthol-3,6-disulfonic acid and its salts,” and others. The instant merchandise is not any one of the listed compounds, but rather the polymer that results from the addition of formaldehyde to one of the naphthalenesulphonic acid compounds described in subheading 2908.20.04, HTSUS, and the subsequent condensation process.

The MSDS for the product describes the merchandise as a “Tannery retannage agent.” Such agents are clearly included in heading 3202, HTSUS, as a “tanning preparation” that is “used in conjunction with natural tanning materials to assist their penetration into the skins.” EN 32.02. In fact, the instant product is exactly described by EN 32.02 (I)(A)(1) which specifically includes “Aromatic syntans such as condensation products of formaldehyde with . . . naphthalenesulphonic acids.” This listing is persuasive authority on the matter. See, H.I.M./Fathom, Inc., supra. As such, it renders moot protestant’s argument that heading 3202, HTSUS, does not describe the instant merchandise because it is used in the production of textiles and cements as well as in tanning.

HOLDING:

The Protest is denied. Penetrator 7312 (Floretan GA) is classified in subheading 3202.10.1000, HTSUSA (Annotated), the provision for "[“Synthetic organic tanning substances; inorganic tanning substances; tanning preparations, whether or not containing natural tanning substances; enzymatic preparations for pre-tanning: Synthetic organic tanning substances: Aromatic or modified aromatic.” The column 1 “General” duty rate for 2004 is 6.5%.

Duty rates are provided for the protestant’s convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of this letter, the Office of Regulations and Rulings will make this letter available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director

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