CLA-2 RR:CR:GC 957454 HMC
Port Director of Customs
300 S. Ferry St.
Terminal Island, CA 90731
RE: Carnal 659S; Subheading 2835.31.00; Chapter 28, Note 1(a);
General Explanatory Note to Chapter 28; Sodium Tripolyphosphate;
Mixtures of Two or More Inorganic Compounds; NY 834907 and NY
895972, Affirmed.
Dear Port Director:
This is in response to your letter, dated December 6, 1994,
requesting reconsideration of New York ruling letter (NY) 895972,
dated July 22, 1994, and NY 834907, dated January 17, 1989. In
these rulings, Customs classified Carnal 659S under subheading
3823.90.39 (currently 3824.90.39) of the Harmonized Tariff
Schedule of the United States (HTSUS), as other mixtures of two
or more inorganic compounds. Please note that HQ 955757, HQ
958403 and HQ 959887, involving the same merchandise were also
issued on this date. Samples were submitted for laboratory
tests.
FACTS:
The product, Carnal 659S, is made of sodium
tripolyphosphate, sodium pyrophosphate and sodium
hexametaphosphate. Carnal 659S is manufactured from 100% pure
sodium tripolyphosphate by decreasing the purity of the compound
until the proper yield and solubility is reached. Specifically,
the importer claims that the merchandise is a combination of 80%
sodium tripolyphosphate, 5% sodium pyrophosphate and 15% sodium
hexametaphosphate.
The provisions under consideration are as follows:
2835 Phosphinates (hypophosphites), phosphonates
(phosphites), phosphates and polyphosphates:
Polyphosphates:
2835.31.00 Sodium Triphosphate(Sodium
tripolyphosphate)...1.4%
* * * *
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:
Other:
Other:
3824.90 Mixtures of two or more inorganic
compounds:
3824.90.39 Other:...Free
ISSUE:
Whether the chemical compound Carnal 659S is classifiable as
a mixture of two or more inorganic compounds under subheading
3824.90.39, HTSUS, or as a single compound of sodium
tripolyphosphate under subheading 2835.31.00, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS, in accordance
with the General Rules of Interpretation (GRIs). GRI 1 states in
part that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
Chapter 28, Note 1(a), HTSUS, states that
Except where the context otherwise requires, the
headings of this chapter apply only to:
(a) Separate chemical elements and separate
chemically defined compounds, whether or not
containing impurities;
The Harmonized Commodity Description And Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the Harmonized system. While not legally binding on the
contracting parties, and therefore not dispositive, the ENs
provide a commentary on the scope of each heading of the
Harmonized System and are thus useful in ascertaining the
classification of merchandise under the System. Customs believes
the Notes should always be consulted. See T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (Aug. 23, 1989).
General EN (A) to Chapter 28, HTSUS, at page 238, states
that separate chemical elements and separate chemically defined
compounds containing impurities, or dissolved in water, remain
classified in Chapter 28.
The EN further states that
[t]he term "impurities" applies exclusively
to substances whose presence in the single
chemical compound results solely and directly
from the manufacturing process (including
purification). The 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.
The EN continues to say
[i]t should be noted, 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.
In this instance, the importer has provided a specification
sheet that describes Carnal 659S as a combination of sodium
tripolyphosphate, sodium pyrophosphate and sodium
hexametaphosphate, which has been instantized for rapid
solubility. Specifically, the importer claims that the
merchandise is made of 80% sodium tripolyphosphate, 5% sodium
pyrophosphate and 15% sodium hexametaphosphate. The
specification data sheet also states that the merchandise was
developed specifically for use in marinades and pickling brines
that contain high levels of salt and phosphate. This
instantizing process permits the product to dissolve completely
at low temperatures in the presence of salt or hard water.
Carnal 659S is thus produced under controlled conditions to
ensure that the product's constant composition is suitable for a
specific use rather than for general applications.
We note Hawley's Twelfth Edition of the Condensed Chemical
Dictionary, at page 1072, as well as other technical references,
which state that sodium tripolyphosphate may contain up to 10%
pyrophosphate and up to 5% tri-metaphosphate. Thus, we believe
that Carnal 659S may contain up to 15% of impurities. Since the
merchandise contains 20% of substances other than sodium
tripolyphosphate, we believe that these substances are not
impurities but additives deliberately left in the product.
The Customs Office of Laboratory and Scientific Services in
Savannah, Georgia, performed two analyses on samples of Carnal
659S. In laboratory report 4-93-20884-001, dated July 6, 1993,
it concluded that Carnal 659S was not a mixture of two or more
inorganic compounds. On November 3, 1994, at the request of the
Los Angeles laboratory for an analysis on a new sample of Carnal
659S, the Savannah Laboratory issued Customs Laboratory report 4-95-20039, in which it again concluded that Carnal 659S was a
single inorganic compound containing trace amounts of calcium,
iron and zinc. Based on this report, the Los Angeles laboratory
issued Customs Laboratory report 7-95-20006-001, dated November
7, 1994, which restated the Savannah Laboratory's conclusions. A
sample of Carnal 659S was subsequently sent to the New York
laboratory for additional analyses. The New York laboratory did
not issue a report but responded to the National Import
Specialist that they could not ascertain whether Carnal 659S was
a mixture or a single compound.
In order to reconcile conflicting reports by the New York
and Savannah laboratories, the Customs Headquarters Office of
Laboratory and Scientific Services issued its own Laboratory
Report. The report determined that the classification of Carnal
659S should be analytically based. However, the laboratory found
that tests conducted on the product showed inconsistencies when
using X-ray diffraction (XRD) analyses. The tests failed to
positively identify the components of Carnal 659S. The
laboratory concluded that it could not ascertain an alternative
method of testing and that the information provided by the
importer showed Carnal 659S should be considered a mixture.
Based on the information provided by the importer and the
laboratory report, we find that Carnal 659S is a mixture of two
or more inorganic compounds, classifiable under subheading
3824.90.39. We however believe that this finding in no way
precludes Customs from conducting future tests of the merchandise
to determine its composition. This is consistent with the
findings of NY 834907, dated January 17, 1989, and NY 895972,
dated July 22, 1994. We therefore affirm NY 834907 and NY
895972.
HOLDING:
Carnal 659S is provided for in heading 3824, HTSUS. It is
classifiable under subheading 3824.90.39, HTSUS, as other
mixtures of two or more inorganic compounds: Other. The rate of
duty is free.
EFFECT ON OTHER RULINGS:
NY 834907, dated January 17, 1989, and NY 895972, dated July
22, 1994, are affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division