CLA-2 OT:RR:CTF:TCM H257210 GA
Port Director
Port of Charleston
200 East Bay Street
Charleston, SC 29401
Attn: Heather Puckhaber, Import Specialist
RE: Application for Further Review of Protest (AFR) No. 1601-14-100056; Tariff classification of N-(n-Butyl) thiophosphoric triamide (NBPT), CAS No. 94317-64-3
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 1601-14-100056, timely filed by counsel on behalf of Vasto Chemical Corporation, Inc., (“Vasto” or “Prostestant”). The protest and AFR is against U.S. Customs and Border Protection’s (CBP) classification of N-(n-Butyl) thiophosphoric triamide (NBPT), CAS No. 94317-64-3 under heading 2929 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Compounds with other nitrogen function.” A sample was received and analyzed by the Port of New York (NY) Laboratory. CBP has also considered arguments by counsel during a meeting with members of my staff at CBP Headquarters on May 5, 2015.
FACTS:
The subject merchandise is N-(n-Butyl) Thiophosphoric Triamide (NBPT), Chemical Abstracts Service (“CAS”) No. 94317-64-3 and molecular formula C4H14N3PS. Laboratory Report #NY20101855, dated January 15, 2011, indicates that the product is a butylated thiophosphorotriamidate. It is used as a “fertilizer amendment” for retarding hydrolysis of urea fertilizer in soil. The chemical structure of N-(n-Butyl) Thiophosphoric Triamide (NBPT) is as follows:
The subject merchandise was imported on multiple entries between January and November 2013 at the port of Charleston. At the time of entry, Vasto classified the product under subheading 2920.11, HTSUS, which provides for “Esters of other inorganic acids of nonmetals (excluding esters of hydrogen halides) and their salts; their halogenated, sulfonated, nitrated or nitrosated derivatives: Thiophosphoric esters phosphorodithioates) and their salts, their halogenated, sulfonated, nitrated or nitrosated derivatives: Parathion (ISO) and parathion-methyl (ISO) methyl-parathion.”
CBP issued a Notice of Action on Customs Form (CF) 29 on September 4, 2013, and subsequently liquidated the subject entries under subheading 2929.90.5090, HTSUSA, which provides for “Compounds with other nitrogen function: Other: Other: Other: Other.”
Protestant timely filed its Protest and AFR on March 19, 2014, claiming that the correct classification of the merchandise is subheading 2942.00.5000, HTSUSA, which provides for “Other organic compounds: Other.”
ISSUE:
Whether N-(n-Butyl) thiophosphoric triamide (NBPT) is classified under heading 2929, HTSUS, as a “compound with other nitrogen function” or under heading 2942, HTSUS, as an “other organic compound.”
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 1601-14-100056 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24 (a) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee with respect to the same or substantially similar merchandise.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS headings under consideration are as follows:
2929 Compounds with other nitrogen function
2942 Other organic compounds
Legal Note 1(a) to Chapter 29, HTSUS, provides, as follows:
Except where the context otherwise requires, the headings of this Chapter apply only to:
Separate chemically defined organic compounds, whether or not containing impurities;
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HS and are thus useful in ascertaining the proper classification of merchandise. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN 29.29 (4) provides as follows:
This heading includes:
(4) Organic-substituted amide derivatives of inorganic acids (other than carbonic acid) and organic substituted imide derivatives of inorganic acids.
There is no dispute that the subject merchandise is a separate chemically defined organic compound within the meaning of Note 1(a) to Chapter 29. As such, the subject merchandise is classifiable in Chapter 29, HTSUS.
While the Protestant recognizes the presence of nitrogen functional groups in the product’s chemical structure, it argues that the product is not described by heading 2929, HTSUS, because the product does not have an “other nitrogen function”. Protestant explains that the product does not provide nitrogen to the soil, and that the nitrogen in the compound is not what provides the product its urease inhibiting activities. Instead, Protestant argues that it is the phosphorus in the compound that provides its “function”. Protestant suggests that the product has a “phosphorus function”. Therefore, Protestant concludes that it would be classifiable in heading 2942, HTSUS, as an “other organic compound”.
Regarding the classification of organic compounds under Chapter 29, the first thirty-five headings in Chapter 29 describe the products provided for therein in terms of various functional groups, which may be present in the compound structure. The enumerated functional groups are the primary,--indeed, the exclusive,--criteria for defining the scope of the individual headings. The concepts of "use" or the relative reactive properties of these functional groups in a given compound are not descriptive elements in any of these headings, nor are they conditional to classification therein. See also NY D81284, dated August 27, 1998.
The CBP Laboratory determined that the product is a butylated thiophosphorotriamidate. The EN 29.29(4) states, in relevant part, that heading 2929, HTSUS, includes “organic-substituted amide derivatives of inorganic acids (other than carbonic acid)”. The product is an organic-substituted amide (n-butyl amide) derivative of an inorganic acid (thiophosphoric acid). The nitrogen function of the compound is that of an amide and not of an amine and it is neither an amide of carbonic/carboxylic acids (heading 2924, HTSUS) or a sulfonamide (heading 2935, HTSUS). It is a compound with other nitrogen function classified in heading 2929, HTSUS. Because the product is described by heading 2929, HTSUS, it is not classifiable in heading 2942, HTSUS, as an “other organic compound”. Our decision is consistent with NY N137515, dated February 25, 2011, which classified N-(n-Butyl) thiophosphoric triamide (NBPT), CAS No. 94317-64-3 in subheading 2929.90, HTSUS.
Finally, Protestant cites NY A88070, dated February 5, 1997, and NY A87653, dated September 26, 1996, in support of its claim that the subject merchandise is classified in heading 2942, HTSUS. In NY A88070 and A87653 a product known as Chelal Fe was classified in heading 2942 as an “other organic compound”. Protestant argues that like the product at issue, Chelal Fe is used in fertilizer and it contains nitrogen in its chemical structure.
Chelal Fe is composed of an aqueous solution of either one (not a mixture) of the following: N,N-Bis-2-Bis(Carboxymethyl) Amino Ethyl Glycinato(5-)-Ferrate(2-) Sodium Hydrogen (CAS 12389-75-2) or N,N-Bis-2-Bis(Carboxymethyl) Amino Ethyl Glycinato(5-)-Ferrate(2-) Diammonium (CAS 85959-68-8). Initially we note that Chelal Fe is a completely different chemical compound than the subject merchandise. However, we agree with Protestant, that by their structure, N,N-Bis-2-Bis(Carboxymethyl) Amino Ethyl Glycinato(5-)-Ferrate(2-) Sodium Hydrogen (CAS 12389-75-2) and N,N-Bis-2-Bis(Carboxymethyl) Amino Ethyl Glycinato(5-)-Ferrate(2-) Diammonium (CAS 85959-68-8) should both be classified in a nitrogen function compound heading. We intend to initiate a notice and comment procedure pursuant to 19 U.S.C. 1625(c) to propose to revoke NY A88070 and NY A87653.
HOLDING:
Pursuant to GRIs 1 and 6, N-(n-butyl) thiophosphoric triamide (NBPT) is classified in heading 2929, HTSUS, specifically, in subheading 2929.90.50, HTSUS, which provides for “Compounds with other nitrogen function: Other: Other.” The column one, general rate of duty is 6.5 percent ad valorem.
You are instructed to DENY the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter.
No later than 60 days from the date of this letter, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP homepage on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division