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HQ 967998





February 2, 2006

CLA-2 RR:CTF:TCM 967998 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 3403.99.0000

Ms. Nora H. Bahr
Rhodia Silicones
CN 7500
Cranbury, NJ 08525

RE: Request for reconsideration of NY 850884; Rhodorsil Emulsion 872.

Dear Ms. Bahr:

This letter is in response to your request of October 12, 2005, for reconsideration of New York Ruling Letter (NY) 850884, dated April 20, 1990, as it pertains to the classification of Rhodorsil Emulsion 872 under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

In NY 850884, dated April 20, 1990, Rhodorsil Emulsion 872 was classified in heading 3403, HTSUSA, which provides for lubricating preparations and preparations of a kind used for the oil or grease treatment of textile materials, leather, furskins or other materials.

Rhodorsil Emulsion 872 is a mold lubricant composed of siloxanes and silicones, emulsifiers and water. The technical data sheet you have submitted describes Rhodorsil Emulsion 872 as a slightly anionic aqueous emulsion with a 60% dry content, for general purposes. It describes its applications as a lubricant for web offset printing, mould release of technical rubber, tyres, plastics and foundry materials, water repellant and release agent for industrial glassware and an additive in maintenance products (i.e. floor and furniture polishes and products for the maintenance of leather.)

ISSUE:

Whether Rhodorsil Emulsion 872 is classified in heading 3403, HTSUSA, as lubricating preparations and preparations of a kind used for the oil or grease treatment of textile materials, leather, furskins or other materials or in heading 3910, HTSUSA, as silicones in primary forms.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). 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 GRI may then be applied.

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

You have requested reconsideration because at the time NY 850884 was issued Rhodorsil Emulsion 872 was imported exclusively as a mould release agent. Based on the current technical sheet, you note that this product is now marketed for a wider range of uses than as a mould release. As such, you suggest that classification in heading 3910, HTSUSA, as silicones in primary forms, is more appropriate.

Heading 3403 provides for, among other things, lubricating preparations which includes cutting oil preparations, bolt or nut release preparations, anti- rust or anticorrosion preparations and mold release preparations base on lubricants but excluding preparations containing 70 percent or more by weight of petroleum oils or oils obtained from bituminous minerals. Further guidance concerning what constitutes "lubricating preparations" for purposes of classification under heading 3403 can be found in the ENs to this heading. These ENs state, in part, that:

Provided they do not contain, as basic constituents, 70 % or more by weight of petroleum oils or oils obtained from bituminous minerals (see heading 27.10), this heading includes, inter alia, prepared mixtures of the following types :

(A) Lubricating preparations designed to reduce friction

(B) Lubricating preparations used in wire-drawing

(C) Cutting-oil preparations

(D) Bolt or nut release preparations

(E) Anti-rust or anti-corrosion preparations consisting principally of lubricants

(F) Mould release preparations based on lubricants

(G) Preparations for the lubricating, oiling or greasing of textiles, leather, hides, furskins, etc

Heading 3910, HTSUS, provides for silicones in primary forms. The EN to heading 3910, HTSUS, provides in relevant part:

The silicones of this heading are non-chemically defined products containing in the molecule more than one silicon-oxygen-silicon linkage, and containing organic groups connected to the silicon atoms by direct silicon-carbon bonds.

They have a high stability and may be either liquid, semi-liquid or solid. The products include silicone oils, greases, resins and elastomers.

Silicone oils and greases are used as lubricants remaining stable at high or low temperatures, as water-repellent impregnating products, as dielectric products, as foam inhibitors, as mould release agents, etc. Lubricating preparations consisting of mixtures containing silicone greases or oils fall in heading 27.10 or 34.03 as the case may be (see corresponding Explanatory Notes).

Pursuant to the EN to heading 3910, HTSUS, if Rhodorsil Emulsion 872 is a lubricating preparation, it is classified in heading 3403, HTSUS. Although you note that Rhodorsil Emulsion 872 has applications in addition to mould release, the additional applications such as a lubricant for web offset printing and as an additive in maintenance products for leather fall squarely within the examples of lubricating preparations for purposes of classification in heading 3403, HTSUS. As such, it is excluded from classification in heading 3910, HTSUS.

HOLDING:

Rhodorsil Emulsion 872 is classified in heading 3403, HTSUS. It is specifically provided for in subheading 3403.99.0000, HTSUS, which provides for: “Lubricating preparations (including cutting-oil preparations, bolt or nut release preparations, antirust or anticorrosion preparations and mold release preparations, based on lubricants) and preparations of a kind used for the oil or grease treatment of textile materials, leather, furskins or other materials, but excluding preparations containing, as basic constituents, 70 percent or more by weight of petroleum oils or oils obtained from bituminous minerals: Containing petroleum oils or oils obtained from bituminous minerals: Other: Other.” The column one, general rate of duty is 6.5% ad valorem. EFFECT ON OTHER RULINGS:

NY 850884, dated April 20, 1990, is hereby affirmed.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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