Decision on Application for Further Review of Protest No. 0401-90-000532, on the tariff classification of a synthetic diffusion pump fluid
Active· CBP ruling HQ 088381· Issued 1991-06-28
Ruling text
HQ 088381
June 28, 1991
CLA-2 CO:R:C:F RFC 088381
CATEGORY: Classification
TARIFF No.: 3823.90.2900
District Director of Customs
U.S. Customs Service
Thomas P. O'Neill, Jr. Federal Building
10 Causeway Street, Room 221
Boston, MA 02222-1052
RE: Decision on Application for Further Review of Protest No.
0401-90-000532, on the tariff classification of a synthetic
diffusion pump fluid
Dear Sir:
This is a decision on application for further review of a
protest timely filed on behalf of Varian Associates, Inc., on June
14, 1990, against your decision in the classification under the
Harmonized Tariff Schedule of the United States Annotated (HTSUSA)
of a synthetic diffusion pump fluid known by the brand name "Neovac
Sy." There were two entries of the product. The first entry was
entered under entry number 110-1648762 on September 15, 1989 and
liquidated on March 16, 1990. The second entry was entered under
entry number 110-1649373 on November 28, 1989 and liquidated on
March 23, 1990.
FACTS:
The product is described as a general-purpose diffusion pump
fluid which consists of a mixture of monoalkyldiphenyl ethers with
the alkyl group chain length of 12 to 18 carbon atoms. The product
is considered to be a synthetic oil of the polyphenyl- ether type
(Kirk-Othmer).
The product was developed to have a low-vapor pressure for
use in diffusion pumps to create a vacuum. It is not a lubricating
oil.
Customs classified the product under heading 3823 as "chemical
products and preparations of the chemical or allied industries
(including those consisting of mixtures of natural products), not
elsewhere specified or included." The importer contests this
classification. It entered the product under heading 2710. In its
protest, however, the importer contends that the product is
classified under heading 2707.
ISSUE:
What is the proper tariff classification under the HTSUSA of
a synthetic diffusion pump fluid consisting of a mixture of
chemical compounds?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified
under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA). The tariff classification of merchandise under
the HTSUSA is governed by the principles set forth in the General
Rules of Interpretation (GRIs) and, in the absence of special
language or context which otherwise requires, by the Additional
U.S. Rules of Interpretation. The GRIs and the Additional U.S.
Rules of Interpretation are part of the HTSUSA and are to be
considered statutory provisions of law for all purposes. See
Sections 1204(a) and 1204(c) of the Omnibus Trade and
Competitiveness Act of 1988 (19 U.S.C. 1204(a) and 1204(c)).
GRI 1 requires that classification be determined first
according to the terms of the headings of the tariff schedule
(i.e., (1) merchandise is to be classified under the 4-digit
heading that most specifically describes the merchandise; (2) only
4-digit headings are comparable; and (3) merchandise must first
satisfy the provisions of a 4-digit heading before consideration
is given to classification under a subheading within this 4-digit
heading) and any relative section or chapter notes and, provided
such headings or notes do not otherwise require, then according to
the other GRIs.
GRI 6 prescribes that, for legal purposes, GRIs 1 to 5 shall
govern, mutatis mutandis, classification at subheading levels
within the same heading. Therefore, merchandise is to be
classified at equal subheading levels (i.e., at the same digit
level) within the same 4-digit heading under the subheading that
most specifically describes or identifies the merchandise.
The Explanatory Notes to the Harmonized Commodity Description
and Coding System (hereinafter "Harmonized System") represent the
official interpretation of the Customs Cooperation Council on the
scope of each heading. See H.R. Conf. Rep. No. 100-576, 100th
Cong., 2d Sess. 549 (1988); 23 Customs Bulletin No. 36, 3 (T.D. 89-
90, September 6, 1989), 59 F.R. 35127 (August 23, 1989). Although
not binding on the contracting parties to the Harmonized System
Convention or considered to be dispositive in the interpretation
of the Harmonized System, the Explanatory
Notes should be consulted on the proper scope of the Harmonized
System. Id.
A review of the three headings under consideration shows that
two chapters of the schedule are involved: chapter 27 and chapter
38. Chapter 27 covers "mineral fuels, mineral oils and products
of their distillation" and "bituminous substances" and "mineral
waxes." Guidance concerning the coverage of chapter 27 can be
found in the general notes to the Explanatory Notes thereto:
The Chapter covers, in general, coal and other natural mineral
fuels, petroleum oils and oils obtained from bituminous
minerals, their distillation products, and products of a
similar kind obtained by any other process. It also covers
mineral waxes and natural bituminous substances. Goods of
this Chapter may be crude or refined; however, with the
exception of methane and propane, when they are separate
chemically defined organic compounds in the pure or
commercially pure state, they are to be classified in Chapter
29. For certain of these compounds (e.g., ethane, benzene,
phenol, pyridine) there are specific purity criteria indicated
in Explanatory Notes 29.01, 29.07 and 29.33. Methane and
propane are classified in heading 27.11, even when pure.
See General Notes to the Explanatory Notes to Chapter 27 to the
Harmonized Commodity Description and Coding System
A review of the above-listed paragraph shows that products
consisting of separate chemically defined organic compounds or
mixtures thereof in the pure or commercially pure state are not
properly classified in chapter 27.
As indicated above, the importer has advanced two headings
within chapter 27 for the classification of the instant product:
2707 and 2710. Heading 2707 provides for "oils and other products
of the distillation of high temperature coal tar" and "similar
products in which the weight of the aromatic constituents exceeds
that of the nonaromatic constituents." On the other hand, heading
2710 provides for "petroleum oils and oils obtained from bituminous
minerals, other than crude" and "preparations not elsewhere
specified or included, containing by weight 70 percent or more of
petroleum oils or of oils obtained from bituminous minerals, these
oils being the basic constituents of the preparations." Each of
the terms of these two headings essentially provides for oils in
crude form or products directly resulting from the distillation or
refining of petroleum or coal tar. They do not provide for
separate chemically defined organic compounds or mixtures thereof
in the pure or commercially pure state. As indicated above, the
instant product is a synthetic oil consisting of a mixture of
refined chemical compounds. In light thereof, there can be not
doubt that this product is not properly classified under either
heading 2707 or 2710.
The third heading under consideration, as indicated above, in
the instant classification analysis is heading 3823. It provides
for, among other things, "chemical products and preparations of the
chemical or allied industries (including those consisting of
mixtures of natural products), not elsewhere specified or
included." In the instant case, the product consists of a mixture
of chemical compounds that separately would be classified in
chapter 29. Accordingly, the product, pursuant to GRI 1, is most
specifically described by the terms of heading 3823. Therefore,
it is properly classified thereunder.
HOLDING:
The above-described product is properly classified under
subheading 3823.90.2900, HTSUSA, which provides for, among other
things, chemical products and preparations of the chemical or
allied industries (including those consisting of mixtures of
natural products), not elsewhere specified or included. The
general rate of duty for the year 1989 is 3.7 cents/kg plus 13.6
ad valorem.
The protest should be denied in full. A copy of this decision
only should be furnished to the protestant with the Form 19 notice
of action. Original documents associated with these entries and
the protest for further review are being returned to be retained
in the files in the District, as appropriate.
Sincerely,
John Durant, Director
Commercial Rulings Division
Source: rulings.cbp.gov — ruling 088381, retrieved 2026-10-12T05:20:36Z, republished verbatim. This digest is informational; only CBP issues binding rulings.