CLA-2- OT:RR:CTF:TCM H113238 TNA
Mr. Eric Rivera CHB
Import Export Compliance Manager
Yara North America, Inc.
100 N. Tampa Street
Suite 3200
Tampa, FL. 33602
RE: 19 C.F.R. §177.13 Petition to Reconcile Conflicting Decisions at Different Ports; Classification of CN-9 Solution
Dear Mr. Rivera:
This is in reference to your correspondence, dated June 16, 2010, on behalf of Yara North America, Inc., filing a petition under 19 C.F.R. §177.13 to reconcile inconsistent decisions at the Port of Baltimore and the Port of Long Beach. The petition concerns the classification of CN-9 Solution under the Harmonized Tariff Schedule of the United States (HTSUS).
Notice of this petition was published in the Federal Register on August 9, 2011, 76 Fed. Reg. 48875. Notice was also published in the Customs Bulletin, Vol. 45, No. 35, on August 24, 2011, and in Volume 45, No. 36, on August 31, 2011. No comments were received in response to this notice.
FACTS:
The subject merchandise, CN-9 Solution, consists of a hydrated ammonium calcium nitrate double salt. As a whole, the product contains 11 percent calcium, and nine percent nitrogen, of which 8.42 percent is nitrate nitrogen and 0.58 percent is ammoniacal nitrogen.
The CN-9 Solution is used as a fertilizer to provide nitrate nitrogen and water soluble calcium for fertigation applications via low volume or furrow irrigation. The CN-9 solution is also used for waste water treatment, but the product remains chemically identical for both uses.
The merchandise was entered at both ports under subheading 3102.60.00, HTSUS, which provides for “Mineral or chemical fertilizers, nitrogenous: Double salts and mixtures of calcium nitrate and ammonium nitrate.” It was entered at the Port of Long Beach between January 24, 2009 and September 8, 2009 and liquidated as entered on October 13, 2009. The subject merchandise was entered at the Port of Baltimore on April 20, 2010 in subheading 3102.60.00, HTSUS. However, it was liquidated on June 3, 2010 in subheading 2842.90.90, HTSUS, which provides for “Other salts of inorganic acids or peroxoacids (including aluminosilicates whether or not chemically defined), other than azides: Other: Other.” You filed this petition on June 16, 2010, claiming that the correct classification for the merchandise is under subheading 3102.60.00, HTSUS.
ISSUE:
Whether CN-9 Solution is classified in heading 2842, HTSUS, as “Other salts of inorganic acids or peroxoacids (including aluminosilicates whether or not chemically defined), other than azides”; or in heading 3102, HTSUS, as a nitrogenous mineral or chemical fertilizer?
LAW AND ANALYSIS:
This petition was filed in accordance with 19 C.F.R. §177.13 to reconcile inconsistent classification decisions at the Port of Baltimore and the Port of Long Beach. Specifically, it presents evidence that the subject merchandise was classified in subheading 2842.90.90, HTSUS, by the Port of Baltimore and under subheading 3102.60.00, HTSUS, by the Port of Long Beach. The petition was timely filed on June 16, 2010, within 90 days of the last port decision.
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.
The HTSUS headings under consideration are the following:
2842 Other salts of inorganic acids or peroxoacids (including aluminosilicates whether or not chemically defined), other than azides:
2842.90 Other:
2842.90.90 Other
3102 Mineral or chemical fertilizers, nitrogenous:
3102.60.00 Double salts and mixtures of calcium nitrate and ammonium nitrate
Legal Note 5 to Chapter 28, HTSUS, states, in pertinent part:
Except where the context otherwise requires, double or complex salts are to be classified in heading 2842.
Legal Note 2 to Chapter 31, HTSUS, states, in pertinent 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:
…
(v) Double salts (whether or not pure) or mixtures of calcium nitrate and ammonium nitrate;…
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, 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 EN to heading 28.42 states, in pertinent part, the following:
(II) DOUBLE OR COMPLEX SALTS
This group covers double or complex salts other than those specifically included elsewhere.
The EN to heading 31.02 states, in pertinent part, the following:
This heading applies only to the following goods, provided they are not put up in the forms or packages described in heading 31.05:
(A) Goods which answer to one or other of the descriptions given below:…
(5) Double salts (whether or not pure) or mixtures of calcium nitrate and ammonium nitrate. Some mixtures of calcium nitrate and ammonium nitrate may be sold as “calcium nitrate fertiliser ”…
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…
(B) Fertilisers consisting of any of the goods referred to in paragraph (A) above mixed together (e.g., a fertiliser consisting of a mixture of ammonium sulphate and ammonium nitrate).
The subject merchandise is a hydrated ammonium calcium nitrate double salt that is used as a fertilizer. While it can also be used for water treatment, its primary use is as a fertilizer and its chemical structure is identical for both uses. As a result, it is described by the terms of heading 3102, HTSUS, as a nitrogenous mineral fertilizer.
Furthermore, Legal Note 2 to Chapter 31, HTSUS, specifically lists this merchandise: double salts, whether or not pure, or mixtures of calcium nitrate and ammonium nitrate. In addition, EN 31.02 confirms this interpretation. The subject merchandise is a fertilizer with a secondary use in waste water treatment. This alternate function is explicitly allowed by EN 31.02.
The Port of Baltimore liquidated the subject merchandise under heading 2842, HTSUS. Legal Note 5 to Chapter 28, HTSUS, directs classification of double or complex salts into heading 2842, HTSUS, “except where the context otherwise requires.” There is no dispute that the subject merchandise is a double salt, but the context here requires that it be classified outside heading 2842, HTSUS. In this case, the subject merchandise is specifically described by Legal Note 2 to heading 3102, HTSUS, as being classified in that heading. The subject merchandise is also described, eo nomine, by the terms of heading 3102, HTSUS, as a nitrogenous mineral fertilizer. As a result, the context requires that it be classified there instead of heading 2842, HTSUS.
HOLDING:
By application of GRI 1, the CN-9 Solution is classified in heading 3102, HTSUS, specifically under subheading 3102.60.00, HTSUS, which provides for: “Mineral or chemical fertilizers, nitrogenous: Double salts and mixtures of calcium nitrate and ammonium nitrate.” The general, column one duty rate is free.
This ruling is effective immediately, and the Office of International Trade, Regulations and Rulings, will publish notice of this decision in the Federal Register and the Customs Bulletin, and will make the decision available to CBP personnel, and to the public on the CBP Home Page 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