United States Court of Appeals for the Federal Circuit 

2006-1387 

BASF CORPORATION, 

Plaintiff-Appellant, 

v. 

UNITED STATES, 

 Defendant-Appellee. 

Frederic D. Van Arnam, Jr., Barnes, Richardson & Colburn, of New York, New 

York, argued for plaintiff-appellant. Of counsel was James S. O’Kelly. 

 

Bruce N. Stratvert, Attorney, International Trade Field Office, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of New York, New 

York, argued for defendant-appellee. With him on the brief were Peter D. Keisler, 

Assistant Attorney General, and Barbara S. Williams, Attorney in Charge. Of counsel 

on the brief was Michael W. Heydrich, Office of Assistant Chief Counsel, International 

Trade Litigation, United States Customs and Border Protection, of New York, New York. 

Appealed from: United States Court of International Trade 

Judge Gregory W. Carman 
United States Court of Appeals for the Federal Circuit 

2006-1387 

BASF CORPORATION, 

Plaintiff-Appellant, 

v. 

UNITED STATES, 

Defendant-Appellee. 

__________________________ 

DECIDED: August 10, 2007 

__________________________ 

Before NEWMAN, LOURIE, and GAJARSA, Circuit Judges. 

GAJARSA, Circuit Judge. 

 This is a tariff classification case. BASF Corporation (“BASF”) appeals from 

judgment by the United States Court of International Trade (“trial court”), following a 

bench trial. See BASF Corp. v. United States, 427 F. Supp. 2d 1200 (Ct. Int’l Trade 

2006). BASF objects to the classification of its imported polyisobutylene amine (“PIBA”) 

product in subheading 3811.90.00 of the Harmonized Tariff Schedule of the United 

States (“HTSUS”). Because the imported product is prima facie classifiable in Heading 

3811 of the HTSUS, and because Heading 3811 is more specific than the heading in 

which BASF argues the product should be classified, we affirm the decision of the trial 

court. 
I. BACKGROUND

A. The Imported Product

 The facts are largely undisputed and are set forth in greater detail in the trial 

court’s opinion, BASF Corp. v. United States, 427 F. Supp. 2d 1200 (Ct. Int’l Trade 

2006) (“BASF I”). The product at issue here is manufactured by BASF’s German 

parent, BASF AG, and is identified by the brand name “PURADD® FD-100.” Id. at 

1202. Its active ingredient is polyisobutylene amine (“PIBA”), which is a detergent 

useful for removing and preventing the buildup of harmful deposits in gasoline engines 

when mixed with fuel. Id. at 1203. The imported product is a liquid mixture of 53% 

PIBA and 47% solvent used in manufacture. Id. at 1204. That product, however, 

cannot practically be used in gasoline without the simultaneous addition of other 

chemicals. Addition of PURADD® FD-100 alone to gasoline would violate 

Environmental Protection Agency (“EPA”) regulations, id. at 1203, and tend to cause 

undesirable sticking of engine valves, id. at 1204. After importing the product into the 

United States, BASF blends it with a synthetic carrier oil and other ingredients to form a 

finished “detergent control additive package,” or “DCA.” That DCA package is suitable 

for blending with gasoline to be sold at retail, because the other chemicals mixed with 

PURADD® FD-100 mitigate its harmful effects while still taking advantage of its 

detergent properties. The PIBA from the imported product is the active detergent 

ingredient in the finished DCA. Id. at 1203-04. The DCA package is EPA-approved for 

introduction into gasoline and is sold to fuel vendors. Id. at 1204. Those vendors then 

blend BASF’s DCA package into their gasoline. 

2006-1387 2
 Nearly all of the PIBA product that BASF imports goes into these DCA packages. 

Id. at 1203. Making the DCA package simply requires mixing the PIBA product with the 

package’s other chemical components—no chemical reactions occur during this mixing 

process, and the PIBA product maintains its chemical identity in the mixture. If it were 

commercially practical to do so, the various components of the DCA could be added to 

the gasoline separately to achieve the same effect. 

B. Procedural History

 The entries at issue in this case took place between January and July of 2000. 

The United States Customs Service (“Customs,” now known as the United States 

Bureau of Customs and Border Protection1

) classified the imported PIBA product in 

subheading 3811.19.00 of the HTSUS. Neither party contends that was the correct 

classification. After the product entries, Customs revoked its ruling HQ 956585, which 

had established a policy of classifying chemical products of this type in subheading 

3811.19.00, and issued a new ruling HQ 964310. That ruling concluded that the correct 

classification of the imported product is subheading 3811.90.00. At all relevant times, 

that subheading read: 

Antiknock preparations, oxidation inhibitors, gum inhibitors, viscosity 

improvers, anti-corrosive preparations and other prepared additives, for 

mineral oils (including gasoline) or for other liquids used for the same 

purposes as mineral oils: . . . Other. 

Dissatisfied with this classification, BASF protested to Customs. That protest was 

denied, and BASF appealed to the Court of International Trade. BASF argued to the 

 1

 The United States Customs Service was renamed the United States 

Bureau of Customs and Border Protection effective March 1, 2003. See Homeland 

Security Act of 2002, Pub. L. No. 107-296, § 1502, 116 Stat. 2135, 2308-09 (2002); 

Reorganization Plan Modification for the Department of Homeland Security, H.R. Doc. 

No. 108-32 (2003). 

2006-1387 3
trial court that the correct classification for the imported product was subheading 

3902.20.50: “Polymers of propylene or of other olefins, in primary forms: . . . 

Polyisobutylene: . . . other [than elastomeric, 3902.20.10].” BASF based this argument 

on two grounds. First, it argued that the imported product was not prima facie

classifiable in Heading 3811 at all. Heading 3811 covers “prepared additives[] for 

mineral oils (including gasoline),” and BASF suggested that because PURADD® 

FD-100 underwent mixing with other chemicals before being added to gasoline, it was 

not itself a “prepared additive” for gasoline. Second, BASF argued that even if the 

imported product were prima facie classifiable in Heading 3811, Heading 3902 was 

more specific and thus the correct classification. See HTSUS, General Rule of 

Interpretation 3(a) (“The heading which provides the most specific description shall be 

preferred to headings providing a more general description.”). 

The trial court found that the imported product was a polymer of an olefin, and 

that it was in “primary form,” since HTSUS Chapter 39 note 6 states that liquid is a 

primary form. BASF I, 427 F. Supp. 2d at 1211-12. Therefore, the trial court concluded 

that the imported product was prima facie classifiable in Heading 3902, id. at 1214, a 

determination neither party challenges on appeal. With respect to Heading 3811 

(“prepared additives[] for mineral oils (including gasoline)”), the trial court found that the 

imported product was “prepared” because it had undergone “rigorous chemical 

transformations” during manufacture. Id. at 1215. The trial court found the imported 

product to be an “additive,” as it was manufactured and marketed for addition to 

gasoline. Id. at 1216. Finally, the trial court found that the imported product was “for 

. . . gasoline,” rejecting BASF’s argument that only a DCA mixture as a whole, but not 

2006-1387 4
the PURADD® FD-100 mixed into it, was an additive for gasoline. Id. at 1216. It noted 

that the imported product, while not certified by the EPA for introduction alone, “is 

registered with the EPA as a gasoline additive, is designed to impart gasoline 

detergency, has detergent properties, is part of the class or kind of articles that impart 

detergency when added to gasoline, retains its chemical properties when blended in a 

DCA package, and is dedicated for use as a gasoline detergent.” Id. Accordingly, the 

trial court found that the imported product was prima facie classifiable in Heading 3811. 

Id. at 1222. 

Having identified two headings into which the imported product was prima facie

classifiable, the trial court next considered which was the more specific. Id. at 1222-23. 

It noted that in general, use provisions like Heading 3811 (which covers any product 

used as an additive for gasoline) are considered more specific than eo nomine

provisions such as Heading 3902 (which identifies a class of chemicals by their 

structure). Id. at 1222. Agreeing with the government that “the requirements of heading 

3811 are the more difficult to satisfy,” the trial court determined that Heading 3811 was 

the more specific and therefore the correct heading in which to classify the imported 

product. Id. at 1223. The trial court accordingly entered judgment for the government, 

ordering that the imported PIBA product be classified in subheading 3811.90.00. Id. at 

1224. 

 BASF timely appeals to this court. We have jurisdiction under 28 U.S.C. 

§ 1295(a)(5). 

2006-1387 5
II. DISCUSSION

 We review questions of law de novo, including the interpretation of terms in the 

HTSUS. Home Depot U.S.A., Inc. v. United States, No. 2006-1459, slip op. at 2 (Fed. 

Cir. 2007), available at http://www.fedcir.gov/opinions/06-1459.pdf (citing Rollerblade, 

Inc. v. United States, 282 F.3d 1349, 1352 (Fed. Cir. 2002); Better Home Plastics Corp. 

v. United States, 119 F.3d 969, 971 (Fed. Cir. 1997)). Here, the Court of International 

Trade’s legal construction of tariff provisions’ meaning is reviewed without deference, 

while its factual findings are reviewed for clear error. Id. We afford deference under the 

principles of Skidmore v. Swift & Co., 323 U.S. 134 (1944), to Customs’ classification 

decisions. Warner-Lambert Co. v. United States, 407 F.3d 1207, 1209 (Fed. Cir. 2005) 

(citing Mead Corp. v. United States, 533 U.S. 218, 219-20 (2001)). 

Under Skidmore, the degree of deference depends on the thoroughness 

evident in the classification ruling; the validity of the reasoning that led to 

the classification; consistency of the classification with earlier and later 

pronouncements; the formality with which the particular ruling was 

established; and other factors that supply a “power to persuade.” 

Warner-Lambert, 407 F.3d at 1209 (quoting Skidmore, 323 U.S. at 140). Customs’ 

conclusions are “not controlling upon the courts by reason of their authority,” Skidmore, 

323 U.S. at 140, and “this court has an independent responsibility to decide the legal 

issue of the proper meaning and scope of HTSUS terms,” Warner-Lambert, 407 F.3d at 

1209 (citing Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1358 (Fed. Cir. 

2001)). 

A. Prima Facie Classifiability in Heading 3811

 Invoking the longstanding rule of tariff law that goods are to be classified 

according to their condition when imported, see United States v. Citroen, 223 U.S. 407, 

414-15 (1911), BASF argues that the imported product is not a gasoline additive when 

2006-1387 6
imported, because it is unsuitable for addition to gasoline by itself. As a result, BASF 

suggests that classification in Heading 3811 is improper. 

 It is true that the imported PIBA product is not directly mixed into gasoline by 

itself and that other ingredients in the DCA package are blended in to mitigate its valvesticking effects and to comply with EPA regulations. However, the imported product is 

nevertheless added to gasoline. The process of mixing PURADD® FD-100 with the 

other DCA ingredients does not change its chemical structure, nor its character as a 

detergent specially formulated for mixture with gasoline to clean engine deposits. When 

PURADD® FD-100 is introduced into gasoline, it is in essentially the same condition 

that it was when imported. It is therefore appropriate to characterize it as a “prepared 

additive[] for . . . gasoline.” 

 The case here is analogous to the issue raised and decided in United States v. 

P. John Hanrahan, Inc., 45 C.C.P.A. 120 (1958). There, the tariff provision at issue was 

“edible preparations for human consumption.” Id. at 121. The imported product was 

wheat gum gluten, which “cannot, as a practical matter, be eaten by itself but it is 

commonly added to wheat flour to produce a high protein mixture which is used in 

making bread and other foods for dietary purposes.” Id.2

 Despite the fact that the 

imported wheat gluten was not eaten alone, it was nevertheless consumed by humans 

following a mixing step (and also after a cooking step absent from BASF’s preparation 

 2

 The dissent in Hanrahan makes clear how inedible the imported product 

was without being first baked into bread. Id. at 125 (Worley, J., dissenting) (“[I]t is not 

only never eaten as a food, but is insoluble in the juices of the mouth, is unpalatable 

and, if chewed, becomes a spongy mass which is virtually impossible to swallow—and 

even should it be swallowed, is indigestable.”) 

2006-1387 7
of the DCA). As a result, our predecessor court held it to be within the “edible 

preparations” tariff provision. 

The logic used in Hanrahan can be followed here. While unmixed PURADD® 

FD-100 may be unpalatable to a gasoline engine, its detergent properties render it 

useful as a gasoline additive so long as other materials are added at the same time, just 

as wheat gum gluten can be consumed by humans so long as it is baked into bread. 

We therefore agree with the Court of International Trade that the imported product is 

prima facie classifiable in HTSUS Heading 3811. 

B. Relative specificity

 In the alternative, BASF suggests that Heading 3902 is more specific than 

Heading 3811. See HTSUS, General Rule of Interpretation 3(a) (“The heading which 

provides the most specific description shall be preferred to headings providing a more 

general description.”). “Under this so-called rule of relative specificity, we look to the 

provision with requirements that are more difficult to satisfy and that describe the article 

with the greatest degree of accuracy and certainty.” Orlando Food Corp. v. United 

States, 140 F.3d 1437, 1441 (Fed. Cir. 1998). Accordingly, if BASF is correct that 

Heading 3902 is the more specific, the imported product must be classified in that 

heading regardless of whether it is also prima facie classifiable in Heading 3811. 

 Heading 3811, covering “prepared additives, for mineral oils (including gasoline)” 

is a use provision, while Heading 3902 (“Polymers of propylene or of other olefins, in 

primary forms”) is an eo nomine provision, “as it describes the merchandise by name, 

not by use.” Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999). 

When a product is designated both by a use provision and an eo nomine provision, “the 

2006-1387 8
general rule [is] that . . . [the] product . . . is generally more specifically provided for 

under the use provision.” Id. at 1380 (quoting Sports Graphics, Inc. v. United States, 24 

F.3d 1390, 1394 (Fed. Cir. 1994)). This is, however, not a hard-and-fast rule, merely a 

“convenient rule of thumb” which is “not obligatory.” Id. (quoting United States v. 

Siemens Am., Inc., 653 F.2d 471, 478 n.6 (CCPA 1981)). 

 We see no reason to deviate here from the general rule that use provisions are 

more specific. The Explanatory Notes corresponding to Chapter 39 of the HTSUS 

reveal a “very wide range of applications” for goods in Heading 3902: “for example, 

packaging film, moulded parts for automobiles, appliances, housewares, etc., wire and 

cable coating, food container closures, coated and laminated products, bottles, trays 

and containers for storing precision equipment, ducting, tank linings, piping for chemical 

plant, [and] tufted chemical backing.” World Customs Organization, Harmonized 

Commodity Description and Coding System Explanatory Notes 725 (3d ed. 2002).3

 Furthermore, the Explanatory Notes explicitly state that “[w]hen as a result of the 

addition of certain substances, the resultant products answer to the description in a 

more specific heading elsewhere . . . they are excluded from Chapter 39; this is, for 

example, the case with . . . [p]repared additives for mineral oils (heading 38.11).” Id. at 

718.4

 The Court of International Trade found that substances had been added to 

polyisobutylene to render the final product suitable as a fuel additive: the hydrocarbon 

 3

 The uses enumerated here are for polypropylene classified in subheading 

3902.10, which is separate from the subheading at issue in this case. Nevertheless, 

those uses are germane to the relative specificity analysis because “when determining 

which heading is the more specific, and hence the more appropriate for classification, a 

court should compare only the language of the headings and not the language of the 

subheadings.” Orlando Food, 140 F.3d at 1440. 

4

 The same statement appears in editions of the Explanatory Notes which 

predate the entries at issue here. 

2006-1387 9
2006-1387 10

solvent in which the detergent is dissolved when imported, and the amine tail added to 

the polyisobutylene molecules. While this statement in the Explanatory Notes does not 

bind this court, there is no persuasive reason not to follow it here. Accordingly, we 

agree with the trial court that Heading 3811 is more specific than Heading 3902 and 

therefore that the imported product was properly classified in Heading 3811. 

III. CONCLUSION

 Because BASF’s imported PIBA product is prima facie classifiable in Heading 

3811 of the HTSUS, and because that heading is more specific than Heading 3902, we 

agree with the trial court that the imported product should be classified in Heading 3811. 

BASF does not dispute that if Heading 3811 is chosen, subheading 3811.90.00 is the 

correct sub-classification. Therefore, we affirm the judgment of the Court of 

International Trade classifying that product within HTSUS Subheading 3811.90.00. 

AFFIRMED

Each party shall bear its own costs.