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HQ 964808




July 19, 2002

CLA-2 RR:CR:GC 964808AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 2942.00.10

Port Director
U.S. Customs Service
101 East Main St.
Norfolk, VA 23510

RE: Protest 1401-00-100142; Libfer SP®

Dear Port Director:

This is our decision on Protest 1401-00-100142, timely filed by Ciba Specialty Chemicals Corp., on November 15, 2000, against your decision in the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of Libfer SP® identified in three entries made in 1998 and 1999, all of which were liquidated on August 18, 2000.

FACTS:

Libfer SP® consists of 49% iron ethylenediaminedihydroxyphenylacetic acid ("FEEDDHA"), 46% sodium sulfate and 5% water. FEEDDHA has the chemical name sodium ((1,2-ehthenediyldi(imino)bis(2-(hydroxy) benzeneacetato)) ferrate and the CAS 16455-61-1. FEEDDHA is not listed in the Chemical Appendix to the tariff schedule. Libfer SP® is produced by the reaction of ethylenediaminedihydroxyphenylacetic acid ("EDDHA") base with ferric sulfate and caustic soda liquor. The merchandise is used in the agricultural industry as a micronutrient for soil additives.

Customs laboratory report NY20020406, dated April 19, 2002, states in pertinent part, ". . . sodium sulfate is a by-product in the direct formation of FEEDDHA during the manufacturing process. We find no evidence that the sodium sulfate serves any function in the use of Libfer SP® to render the product for specific use. We find no evidence that the sodium sulfate reacts with the iron chelate to form ferric sulfate once it is applied."

The merchandise was entered classified in subheading 2922.49.80, HTSUS, the residual provision for "[O]xygen function amino-compounds: amino-acids and their esters, other than those containing more than one kind of oxygen function; salts thereof: [O]ther: [O]ther: [O]ther." Customs changed the classification and liquidated the entries in subheading 3824.90.28, HTSUS, the provision for "[P]repared 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: [O]ther: [O]ther.

ISSUE:

Whether Libfer SP® is a single chemically defined compound containing a permissible impurity and whether that compound is an amino acid.

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).

The term "products described in additional U.S. note 3 to section VI" refers to "any product not listed in the Chemical Appendix to the Tariff Schedule and--(a) [F]or which the importer furnishes the Chemical Abstracts Service (C.A.S.) registry number and certifies that such registry number is not listed in the Chemical Appendix to the Tariff Schedule; . . ."

Chapter 29, note 3 states "Goods which could be included in two or more of the headings of this chapter are to be classified in that one of those headings which occurs last in numerical order."

The following HTSUS headings are under consideration:

Oxygen function amino-compounds:

Other organic compounds:

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; residual products of the chemical or allied industries, not elsewhere specified or included:

The Chapter Notes to Chapter 29 specifically state:

1. Except where the context otherwise requires, the headings of this Chapter apply only to:

Separate chemically defined organic compounds, whether or not containing impurities; . . . .

3. Goods which could be included in two or more of the headings of this chapter are to be classified in that one of those headings which occurs last in numerical order.

The Explanatory Notes to chapter 29 state, in pertinent part, the following:

The term “impurities” applies exclusively to substances whose presence in the single chemical compound results solely and directly from the manufacturing process (including purification). These substances may result from any of the factors involved in the process and are principally the following:

(a) Unconverted starting materials.

(b) Impurities present in the starting materials.

(c) Reagents used in the manufacturing process (including purification).

(d) By-products.

It should be noted, however, that such substances are not in all cases regarded as “impurities” permitted under Note 1(a). When such substances are deliberately left in the product with a view to rendering it particularly suitable for specific use rather than for general use, they are not regarded as permissible impurities. For example, a product consisting of methyl acetate with methanol deliberately left in with a view to improving its suitability as a solvent is excluded (heading 38.14). . . .

Customs laboratory report NY20020406 states that the sodium sulfate in the merchandise is a by-product of the manufacturing process. There is no evidence to conclude that the sodium sulfate is deliberately left in to render the product particularly suitable for specific use. Hence, the sodium sulfate constitutes a permissible impurity as defined in the ENs. Hence, the merchandise is classifiable within Chapter 29, HTSUS, and resort to classification in heading 3824, HTSUS, a heading for merchandise "not elsewhere specified or included," is unwarranted.

There are two possible headings in Chapter 29 for this merchandise; heading 2922 and heading 2942, HTSUS. Compounds containing amino function structures are typically classified in heading 2922, HTSUS. However, the instant merchandise also contains an iron complex not accounted for by classification solely as an amino function compound. Compounds containing an iron complex are classified in heading 2942, HTSUS, as an "other organic compound." Hence, by operation of Chapter note 3, the instant merchandise is classified in heading, 2942, HTSUS, the latter heading.

Within heading 2942, HTSUS, Libfer SP® is an aromatic compound, by virtue of the presence of two benzene rings. Furthermore, the merchandise is described in additional U.S. note 3 to section IV because it is not listed in the chemical appendix.

We note the New York Ruling Letter (NY) H86531, dated February 4, 2002, classified a chemically identical product, named Dissolvine®, in subheading 2942.00.10, HTSUS.

HOLDING:

Libfer SP® is classified in subheading 2942.00.10, HTSUS, the provision for "[O]ther organic compounds: [A]romatic or modified aromatic: [O]ther; [O]ther: [P]roducts described in additional U.S. note 3 to section VI." You are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, 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 or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division


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