CLA-2 OT:RR:CTF:TCM H056864 CKG
Ms. Eleanore Kelly-Kobayashi
Rode & Qualey
55 West 39th Street
New York, NY 10018
RE: Revocation of NY L81028 and Modification of NY M81919 and HQ W968297;
Ammonium Nitrate Cold Compress Pack
Dear Ms. Kelly-Kobayashi:
This letter is to inform you that the Bureau of Customs and Border Protection
(CBP) has reconsidered the following rulings: New York Ruling Letter (NY) L81028,
issued to you on December 22, 2004, on behalf of your client Becton Dickinson and
Company, Headquarters Ruling Letter (HQ) W968297, dated May 21, 2007, and New
York Ruling M81919, dated April 17, 2006, concerning the classification of ammonium
nitrate cold compress packs. In NY L81028, NY M81919, and HQ W968297 CBP
determined that ammonium nitrate cold compress packs were classified in heading 3102,
HTSUS, which provides for: “Mineral or chemical fertilizers, nitrogenous.” We have
reviewed these rulings and found that the classification of the cold compresses in heading
3102, HTSUS, was in error. Therefore, this ruling revokes NY L81028 and modifies HQ
W968297 and NY M81919.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as
amended by section 623 of Title VI, notice proposing to revoke NY L81028 and
modify HQ W968297 and NY M81919 was published on September 4, 2013 in Volume
47, Number 37, of the Customs Bulletin. No comments were received in response to this
Notice.
FACTS:
The merchandise at issue was described in NY L81028, as follows:
The sample submitted, Ace® Brand Instant Cold Compress is a plastic bag containing ammonium nitrate and water. To use the product, the pack must be squeezed to break the inner liquid bubbles in order to activate the solution. The solution makes the compress instantly cold and it can then be applied to the area requiring treatment. This product is used to help stop pain and swelling.
ISSUE:
Whether the cold compress is classified in heading 3102, HTSUS, as mineral or chemical fertilizers or heading 3105, HTSUS, as goods classifiable in chapter 30, HTSUS, in packages of a gross weight not exceeding 10 kg.
LAW AND ANALYSIS:
GRI 1 provides that classification 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 GRI may then be applied.
The provisions at issue are as follows:
3102 Mineral or chemical fertilizers, nitrogenous
Ammonium nitrate, whether or not in aqueous solution
3105 Mineral or chemical fertilizers containing two or three of the fertilizing elements nitrogen, phosphorus and potassium; other fertilizers; goods of this chapter in tablets or similar forms or in packages of a gross weight
not exceeding 10 kg
3105.10 Products of this chapter in tablets or similar forms or in
packages of a gross weight not exceeding 10 kg
* * * * *
Note 2 to Chapter 31, HTSUS, provides in relevant part:
Heading 3102 applies only to the following goods, provided that they are not put up in the forms or packages described in heading 3105:
(a) Goods which answer to one or other of the descriptions given below:
…
(ii) Ammonium nitrate, whether or not pure
* * * * * The Harmonized Commodity Description and Coding System Explanatory
Notes (ENs), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to heading 3102, HTSUS, provides, in pertinent part:
This heading applies only to the following goods, provided that they are not put up in the forms or packages described in heading 3105:
(A) Goods which answer to one or other of the descriptions given below:
…
(2) Ammonium nitrate, whether or not pure
…
“It should be noted that the mineral or chemical products described in the limitative list above are classified in this heading even when they are clearly not to be used as fertilisers.”
The EN to heading 3105, HTSUS, provides in relevant part:
The heading also covers the goods of this Chapter if put up in tablets or similar forms or in packages of a gross weight not exceeding 10 kg.
* * * *
Heading 3105, HTSUS, covers goods of Chapter 31 put up in packages of less
than 10 kg. Pursuant to Note 2(a)(ii) to Chapter 31 and EN 31.02, heading 3102, HTSUS, covers ammonium nitrate, even if not used as a fertilizer, provided that it is put up in packages of greater than 10kg. Hence, ammonium nitrate, even if not sued as a fertilizer, is product of Chapter 31. If it is put up in packages greater than 10kg, it falls within heading 3102, HTSUS; if in packages of less than 10kg, it falls under heading 3105, HTSUS.
The instant cold compress contains ammonium nitrate which is not used as a fertilizer, and it is imported in a package weighing less than 10 kg. By application of Note 2 to Chapter 31, HTSUS, EN 31.02, and heading 3105, HTSUS, the instant cold compress is excluded from heading 3102, HTSUS, and is classified in heading 3105, HTSUS, as a good of Chapter 31 (i.e., ammonium nitrate), put up in packages of less than 10 kg.
HOLDING:
Pursuant to GRI 1 and Note 2 to Chapter 31, the cold compress is classified in
heading 3105, HTSUS. It is specifically provided for in subheading 3105.10.00, HTSUS,
which provides for “Mineral or chemical fertilizers containing two or three of the fertilizing
elements nitrogen, phosphorus and potassium; other fertilizers; goods of this chapter in
tablets or similar forms or in packages of a gross weight not exceeding 10 kg: Products
of this chapter in tablets or similar forms or in packages of a gross weight not exceeding
10 kg.”
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY L81028, dated December 22, 2004 is hereby revoked; NY M81919 and HQ W968297 are hereby modified.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division