CLA-2 OT:RR:CTF:TCM H051896 JRB
Port Director
Port of Buffalo
U.S. Customs and Border Protection
726 Exchange Street, Suite 400
Buffalo, New York 14210
RE: Internal Advice Request; classification of Phosbrite Co-Product
Dear Port Director:
This is in response to a memorandum from your port, dated January 23, 2009, forwarding a Request for Internal Advice initiated by Potash Corporation (“Potash”), concerning the proper classification of Phosbrite Co-Product, a phosphoric acid mixture under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
Phosbrite Co-Product is a 36% phosphoric acid solution produced during the aluminum brightening process. The three main ingredients of Phosbrite Co-Product are Phosbrite 174LC (a mixture of phosphoric acid, sulfuric acid, water, copper in the form of copper carbonate, nitrogen in the form of anhydrous ammonia, and benzotriazole (BTA)), nitric acid, and water. Phosbrite 174LC is used in the chemical polishing or bright dipping process to polish various aluminum products. The aluminum parts are dipped into the mixture of Phosbrite 174LC and then dipped into a series of rinse tanks. The rinsing causes various amounts of Phosbrite 174LC to be transferred to the subsequent rinse tanks. Once the phosphoric acid in the first rinse tank reaches 36% of the solution; the solution is removed from the rinsing product and is then referred to as Phosbrite Co-Product.
On September 19, 2008, you issued an Informed Compliance Notice advising Potash that the merchandise was properly classified in heading 3824, HTSUS, specifically subheading 3824.90.39, HTSUS. Potash now seeks an internal advice request pursuant to 19 C.F.R. §177.11 on the proper classification of this product.
ISSUE:
Whether Phosbrite Co-Product is classified in heading 2809, HTSUS, which provides for phosphoric acid or in heading 3824, HTSUS, which provides for chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included?
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, 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 (2009) headings under consideration are:
2809 Diphosphorus pentaoxide; phosphoric acid; polyphosphoric acids, whether or not chemically defined:
2809.20.00 Phosphoric acid and polyphosphoric acids…
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:
3824.90 Other:
Other:
Mixtures of two or more inorganic compounds:
3824.90.39 Other…
Other:
Other:
Other:
3824.90.92 Other…
Chapter 28, Note 1 provides:
1. 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;
(b) The products mentioned in (a) above dissolved in water;
(c) The products mentioned in (a) above dissolved in other solvents provided that the solution constitutes a normal and necessary method of putting up these products adopted solely for reasons of safety or for transport and that the solvent does not render the product particularly suitable for specific use rather than for general use;
(d) The products mentioned in (a), (b) or (c) above with an added stabilizer (including an anticaking agent) necessary for their preservation or transport;
(e) The products mentioned in (a), (b), (c) or (d) above with an added antidusting agent or a coloring substance added to facilitate their identification or for safety reasons, provided that the additions do not render the product particularly suitable for specific use rather than for general use.
Phosbrite Co-Product is a phosphoric acid mixture that includes the additional chemical compounds sulfuric acid, BTA, nitric acid, copper carbonate, and anhydrous ammonia. As there is no evidence that the additional chemical compounds are described by any of the exceptions listed in Note 1 to Chapter 28, HTSUS, Phosbrite Co-Product is not classifiable in heading 2809, HTSUS.
Heading 3824, HTSUS, provides for chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included. Since no other heading specifically provides for the subject merchandise consisting of a mixture of other separate chemical compounds, classification is appropriate in heading 3824, HTSUS.
The presence of benzotriazole, an organic compound, excludes subheading 3824.90.39, HTSUS, which provides for mixtures of inorganic compounds, from consideration. Accordingly, Phosbrite Co-Product is properly classifiable in subheading 3824.90.92, HTSUS.
HOLDING:
By application of GRI 1, Phosbrite Co-Product is classified in heading 3824, HTSUS, in particular it is classifiable in subheading 3824.90.92, HTSUS, which provides 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: [o]ther: [o]ther: [o]ther…” The 2009 column one general rate of duty is 5% ad valorem.
You are to mail this decision to the internal advice requester no later than 60 days from the date of the decision. At that time, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Gail A. Hamill for
Myles B. Harmon, Director
Commercial and Trade Facilitation Division