CLA-2 OT:RR:CTF:TCM H147195 AMM
Port Director
U.S. Customs and Border Protection
Service Port - Minneapolis
330 2nd Ave. South, Suite 560 Minneapolis, MN 55401
RE: Tariff classification of an agricultural chemical product known as “Soygreen®”; Protest Number 3501-10-100058
Dear Port Director:
This letter is in reply to protest and application for further review (AFR), number 3501-10-100058, dated October 4, 2010, filed on behalf of West Central, Inc. (West Central), against U.S. Customs and Border Protection’s (CBP) reclassification and subsequent liquidation of four entries at the Service Port of Minneapolis (the Port) of an agricultural chemical product identified by the trade name “Soygreen®”, under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The instant merchandise, “Soygreen®,” is a dry water soluble powder packaged in 10 lb. bags. The accompanying literature notes that it consists of iron (Fe) 6% chelated with Ortho-Ortho Fe-EDDHA. It also states that “Soygreen®” is intended to be part of a complete management package for reducing iron deficiency chlorosis in soybeans. The certificate of analysis submitted specifies amounts for “total soluble iron” and “iron ortho-ortho EDDHA.” The safety information sheets submitted list the chemical composition as “Ethylenediamine-N,N’ –bis (2-hydroxyphenylacetic acid), ferric-sodium complex. Potassium Sulfate.”
At CBP’s request, West Central submitted a sample of “Soygreen®” for laboratory testing. CBP Lab Report No. NY201100348, dated April 8, 2011, states that “the sample contains sodium sulfate and an iron complex of ethylenediamine-N,N’-bis(2-hydroxyphenylacetic acid. The sample does not contain potassium sulfate.”
The chemical structure of Sodium Ferric EDDHA is shown below:
Sodium Ferric EDDHA
(ethylenediamine-N,N’-bis(2-hydroxyphenylacetic acid))
CAS No. 16455-61-1
The subject merchandise was entered four times between February 9, 2009 and April 15, 2009, under heading 3105, HTSUS, which provides for: “[O]ther fertilizers; …”. At the liquidation of all four entries, dated April 9, 2010, the Port classified the merchandise under heading 3824, HTSUS, specifically under subheading 3824.90.92, HTSUS, which provides for: “[C]hemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included: Other: Other: Other: Other: Other”. The instant protest and AFR was filed on October 4, 2010.
ISSUE:
Whether “Soygreen®” is classified as a chemical fertilizer in heading 3105, HTSUS, or as a chemical preparation under heading 3824, HTSUS?
LAW AND ANALYSIS:
The matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest was timely filed on October 4, 2010, within 180 days of liquidation, pursuant to 19 U.S.C. §1514(c)(3).
Further review of Protest 3501-10-100058 was properly accorded to protestant pursuant to 19 C.F.R. §174.24. In accordance with Section 174.24(a), the protestant alleges the decision against which the protest was filed is alleged to be inconsistent with a previous liquidated entry, specifically entry no. 193-2.
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). 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 2010 HTSUS provisions under consideration are as follows:
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:
3105.90.00 Other
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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 containing 5 percent or more by
weight of one or more aromatic or modified
aromatic substances:
3824.90.28 Other
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Other:
Other:
3824.90.92 Other:
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Additional U.S. Note 2 to Section VI (which covers Chapters 31 and 38), HTSUS, states, in pertinent part: “For the purposes of the tariff schedule: (a) The term “aromatic” as applied to any chemical compound refers to such compound containing one or more fused or unfused benzene rings; …”
Note 6 to Chapter 31, HTSUS, states: “For the purposes of heading 3105, the term ‘other fertilizers’ applies only to products of a kind used as fertilizers and containing, as an essential constituent, at least one of the fertilizing elements nitrogen, phosphorus or potassium.”
The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN 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 consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN (B) to Heading 38.24 states, in pertinent part:
This heading includes:
* * *
(B) CHEMICAL PRODUCTS AND CHEMICAL OR OTHER PREPARATIONS
* * *
The chemical or other preparations are either mixtures (of which emulsions and dispersions are special forms) or occasionally solutions.
* * *
The preparations classified here may be either wholly or partly of chemical products (this is generally the case) or wholly of natural constituents.
* * *
West Central alleges that classification of the instant merchandise under heading 3824, HTSUS, is inconsistent with the liquidation of entry no. 193-2 under heading 3105, HTSUS, which provides for “[O]ther fertilizers; …”. West Central further alleges that the instant merchandise is properly classified under heading 3105, HTSUS.
The phrase “other fertilizers” is defined in Note 6 to Chapter 31, HTSUS. In order to be classified as “other fertilizers” under heading 3105, HTSUS, a product must (1) be a product of a kind used as fertilizer, (2) contain either nitrogen, phosphorus, or potassium, and (3) the nitrogen, phosphorus, or potassium must be an essential constituent. See Note 6 to Chapter 31, HTSUS.
West Central alleged that “Soygreen®” contains potassium sulfate. However, when CBP tested the sample provided by West Central, no trace of potassium sulfate or potassium was discovered. Pursuant to 28 U.S.C. §2639(a)(1) (1994), CBP enjoys a statutory presumption of correctness. Thus, an importer has the burden to prove by a preponderance of the evidence that a Customs decision was incorrect. Ford Motor Company v. United States, 157 F.3d 849, 855 (Fed. Cir. 1998); American Sporting Goods v. United States, 27 C.I.T. 450; 259 F. Supp. 2d 1302; 25 Int’l Trade Rep. (BNA) 1345; 2003 Ct. Intl. Trade LEXIS 45. Furthermore, it is “well settled that the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct.” Aluminum Company of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398 (1973) (“Alcoa”). Absent a conclusive showing that the testing method used by the CBP laboratory is in error, or that the Customs’ laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (1978). “If a prima facie case is made out, the presumption is destroyed, and the Government has the burden of going forward with the evidence.” Alcoa, 477 F.2d at 1399; American Sporting Goods, 27 C.I.T. 450.
Because the CBP Laboratory did not find that “Soygreen®” contains nitrogen, phosphorus, or potassium as an essential constituent, it does not meet the definition of “other fertilizers” contained in Note 6 to Chapter 31, HTSUS. Furthermore, protestant presents no evidence to the contrary to destroy the presumption that the CBP Laboratory result is correct. Therefore, “Soygreen®” is not properly classified under heading 3105, HTSUS.
The instant merchandise is similar to several products considered in Headquarters Ruling Letter (HQ) 960202, dated April 6, 1998. In this ruling, CBP considered four products alleged to be fertilizers. Each product was tested in the CBP laboratory. Three of products, identified as Chelal B, Chelal Z, and Chelal Ca, were found not to contain nitrogen, phosphorus, or potassium as an essential constituent. Therefore, these products were excluded from classification under heading 3105, HTSUS, by operation of Note 6 to Chapter 31, HTSUS.
As discussed above, “Soygreen®” is a mixture of sodium sulfate and an iron complex of EDDHA. Therefore, it is properly classified under heading 3824, HTSUS. See EN(B) to heading 38.24. Furthermore, the chemical structure of EDDHA contains two unfused benzene rings, so it meets the definition of an aromatic compound, as described in Additional U.S. Note 2(a) to Section VI, HTSUS. West Central states in the protest that 46% of the product is composed of the Sodium Ferric EDDHA component. Therefore, the “Soygreen®” is specifically classified under subheading 3824.90.28, HTSUS, which provides for “[C]hemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included: Other: Other: Mixtures containing 5 percent or more by weight of one or more aromatic or modified aromatic substances: Other”.
HOLDING:
By application of GRI 1, the “Soygreen®” products which are the subject of protest number 3501-10-100058 are classified in heading 3824, HTSUS, specifically under subheading 3824.90.28, HTSUS, which provides for: “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: Other: Other: Mixtures containing 5 percent or more by weight of one or more aromatic or modified aromatic substances: Other”. The column one, general rate of duty is 6.5% ad valorem.
Since the rate of duty under the classification indicated above is more than the liquidated rate, you are instructed to DENY the protest in full.
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.
Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade 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,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division