# HQ H012679

# 

June 6, 2008

# 

# CLA-2 OT:RR:CTF:TCM H012679 ARM

**CATEGORY:** CLASSIFICATION

**TARIFF NO.:** 3824.90.2800

Area Service Port Director

# U.S. Customs Service

112 W. Stutsman

Pembina, ND 58271

RE: Internal Advice #07/004; Classification of New Combi Process Work
Solution

Dear Port Director:

The following is our decision regarding your memorandum dated April 21,
2007, requesting Internal Advice #07/004, initiated by letter dated
April 10, 2007, by FMC Corporation regarding the classification of two
entries of New Combi Process Work Solution, under the Harmonized Tariff
Schedule of the United States (HTSUS).

**FACTS:**

New Combi Process Work Solution consists of 56% aromatic solvent, 15%
ethylanthraquinone, 11% Tetra-N-Butyl Urea, 8% Tri-Octyl phosphate and
10% other organic components. The aromatic solvent in the solution is
derived from U.S. petroleum distillation. It is mixed in Canada with the
other ingredients from China to create the instant process work
solution. The finished process work solution is then entered into the
U.S. as a starter material for the production of hydrogen peroxide.

**ISSUE:**

What is the correct classification of New Combi Process Work Solution?

**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:

2707 Oils and other products of the distillation of high

> temperature coal tar; similar products in which the weight

of the aromatic constituents exceeds that of the

nonaromatic constituents:

2707.50.00 Other aromatic hydrocarbon mixtures of which

> 65 percent or more by volume (including losses) distills
>
> at 250 ºC by the ASTM D 86 method . . . .

\* \* \* \* \* \*

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:

90. Other:

> Other:
>
> Mixtures containing 5 percent or more by
>
> weight of one or more aromatic or modified
>
> aromatic substances:

3824.90.28 Other.

The ENs to heading 2707 state, in pertinent part, the following:

This heading covers:

\* \* \* \* \*

> \(2\) Similar oils and products with a predominance of aromatic
> constituents obtained by the distillation of low temperature coal tar
> or other mineral tar, by the \" stripping \" of coal gas, by the
> processing of petroleum or by any other process.
>
> The heading includes the oils and products referred to above whether
> crude or refined, but it excludes separate chemically defined
> compounds in the pure or commercially pure state obtained by further
> fractionation or by other processing of tar oils (Chapter 29). For
> benzene, toluene, xylene, naphthalene, anthracene, phenol, cresols,
> xylenols, pyridine and certain derivatives of pyridine, there are
> specific purity criteria, indicated in the relevant parts of
> Explanatory Notes 29.02, 29.07 and 29.33.
>
> Wood tar oils fall in Chapter 38.
>
> The heading does not cover mixed alkylbenzenes or mixed
> alkylnaphthalenes obtained by the alkylation of benzene or
> naphthalene, and having fairly long side-chains (heading 38.17).

The instant work process solution consists of a purposeful mixture of
chemicals produced for the creation of hydrogen peroxide. The bulk of
this mixture contains an aromatic solvent derived from U.S. petroleum
distillation. No doubt this aromatic solvent would itself be classified
in Chapter 27. However, the first requirement of heading 2707 is that
the product be either (1) an oil, or (2) another product of the
distillation of high temperature coal tar, or (3) a similar product to
oil in which the weight of the aromatic constituents exceeds that of the
non-aromatic constituents. Importer states that the product is a mixture
of components. Hence, importer recognizes that the product is not an oil
or a product of the distillation of high temperature coal tar (April 10,
2007, submission p. 3). Rather, the importer submits that the product be
analyzed under GRI 3(b) in order to find which component imparts the
good with its essential character.

We agree with the importer that the product is not an oil or other
product of the distillation of high temperature coal tar. We also agree
that the product is a mixture of such a product and chemicals that are
not created from the distillation of coal tar. We disagree, however,
that this fact necessitates a GRI 3(b) analysis. Heading 2707 certainly
allows for mixtures under a GRI 1 analysis. A mixture is "A
heterogeneous association of substances which cannot be represented by a
chemical formula. Its components may or may not be uniformly dispersed
and can usually be separated by mechanical means. . . ." Hawley's
Condensed Chemical Dictionary, 12^th^ ed., revised by Richard J. Lewis,
Sr., p.788 (Van Nostrand Reinhold Company, New York, 1993). Oil and
products of the distillation of coal tar originate in the earth where
many elemental metals and compounds reside. A portion of these compounds
remain in the final products, hence, the products of heading 2707,
HTSUS, and all of those listed as included in the heading in EN 27.07
above, are chemical mixtures. In fact, when products derived from the
distillation of coal tar are purified beyond a certain point, EN 27.07
directs their classification to Chapter 29.

All of the mixtures listed in the ENs are mixtures of a substance that
were part of the original substance and its manufacture. In other words,
the question of whether the weight of the aromatic constituents exceeds
that of the non-aromatic constituents cannot be posed unless the product
is first found to be similar to oil or other products resulting from the
distillation of high temperature coal tar. Here, the importer's product
contains separate chemical compounds that were added to the initial
aromatic solvent. As such, this particular mixture is not included in
the terms of heading 2707, HTSUS, at GRI 1.

The discussion in New York Ruling Letter (NY) C88110, dated June 17,
1998, is not relevant to the classification question presented here. In
that case, the merchandise was a reformed naphtha product that had not
been mixed with other ingredients. There, the product was obtained
solely from the processing of petroleum. Here, the naphtha product, an
aromatic solvent, has been mixed with non-petroleum additives and
separate chemically defined organic compounds to specifically create the
work solution needed for the production of hydrogen peroxide.

As such, the instant work solution, an aromatic solvent derived from
petroleum manufacture, mixed with non-petroleum additives and separate
chemically defined organic compounds, is described at GRI 1 by heading
3824, HTSUS, as "chemical products and preparations of the chemical or
allied industries (including those consisting of mixtures of natural
products), not elsewhere specified or included."

**HOLDING:**

By application of GRI 1, New Combi Process Work Solution is classified
in heading 3824, HTSUS, specifically in subheading 3824.90.28, HTSUS,
which provides for: "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: Other: Other: Mixtures containing 5
percent or more by weight of one or more aromatic or modified aromatic
substances: Other." The column one, "General" rate of duty is 6.5% *ad
valorem*.

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](http://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 the
Office of Regulations and Rulings will make the decision 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 public methods of distribution.

> Sincerely,
>
> Myles B. Harmon, Director
>
> Commercial and Trade Facilitation Division