CLA-2 OT:RR:CTF:CPM H265102 APP
Mr. Alan Rubin
BMS Micro-Nutrients NV
5405 Alton Parkway, Suite 5-A-612
Irvine, CA 92714
Ms. Kathleen M. Murphy
Katten Muchin Zavis
525 West Monroe St., Suite 1600
Chicago, IL 60661-3693
RE: Revocation of NY A88070 and NY A87653, and modification of NY H86531; Tariff classification of Chelal Fe (CAS 12389-75-2 and CAS 85959-68-8)
Dear Mr. Rubin and Ms. Murphy:
This is to inform you that U.S. Customs and Border Protection (“CBP”) has reconsidered New York Ruling Letters (“NY”) A88070, dated Feb. 5, 1997, and NY A87653, dated Sept. 26, 1996 (both issued to BMS Micro-Nutrients NV), and NY H86531, dated Feb. 4, 2002 (issued to Akzo Nobel Functional Chemicals LLC) regarding the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of Chelal Fe [Chemical Service Abstract Numbers (“CAS”) 12389-75-2 and 85959-68-8]. In these three rulings, CBP classified the product under heading 2942, HTSUS, specifically under subheading 2942.00.50, HTSUS, which provides for “Other organic compounds: Other.”
We have determined that these rulings are in error with respect to the classification of Chelal Fe (CAS 12389-75-2 and CAS 85959-68-8) and that the correct tariff classification should be under heading 2922, specifically under subheading 2922.49.80, HTSUS, which provides for “Oxygen-function amino-compounds: Amino-acids, other than those containing more than one kind of oxygen function, and their esters; salts thereof: Other: Other: Other: Other.” Therefore, for the reasons set forth below we hereby revoke NY A88070 and NY A87653, and modify NY H86531.
Pursuant to section 625(c)(l), Tariff Act of 1930 (19 U.S.C. 1625 (c)(l)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published in the Customs Bulletin, Volume 51, No. 23, on June 7, 2017, proposing to revoke NY A88070 and NY A87653, and modify NY H86531, and to revoke any treatment accorded to substantially identical transactions. No comments were received in response to this notice.
FACTS:
The merchandise at issue in NY A88070 is described as follows:
The sample, Chelal Fe, is composed of an aqueous solution of either [N,N-Bis[2-[Bis(carboxymethyl) amino] ethyl] glycinato(5)]-ferrate(2-) sodium hydrogen or [N,N-Bis[2-[Bis(carboxymethyl) amino] ethyl] glycinato (5)-ferrate (2-) diammonium. This product is used as a fertilizer and will be imported and sold in 5.25 quarts, 50 gallon and 200 gallon containers.
The merchandise at issue in NY A87653 is described as follows:
You have indicated that this product is used as a fertilizer and is composed of an aqueous solution of either one (not a mixture) of the following, depending on the availability:
Chemical Name - N,N-Bis-2-Bis(Carboxymethyl) Amino Ethyl Glycinato(5-)-Ferrate(2-) Sodium Hydrogen CAS 12389-75-2
Chemical Name - N,N-Bis-2-Bis(Carboxymethyl) Amino Ethyl Glycinato(5-)-Ferrate(2-) Diammonium CAS 85959-68-8.
The merchandise at issue in NY H86531 is described as follows:
….D-Fe-6 (Chemical Name - [rel-[N(R)]-N-[2-[bis[(carboxy-kO)methyl]amino-kN]ethyl]-N-[2-[(S)-[(carboxy-kO)methyl](carboxymethyl)amino kN]ethyl]glycinato(5-)-kN,kO]-ferrate(2-), diammonium); D-FE-11 (Chemical Name- [rel-[N(R)]-N-[2-[bis[(carboxy-kO)methyl]amino-kN]ethyl]-N-[2-[(S)-[(carboxy-kO)methyl] (carboxymethyl)amino-kN]ethyl]glycinato(5-)-kN,kO]-, sodium hydrogen, ferrate (2-); …. all of which are used in agriculture and horticulture ….
The CBP Laboratories and Scientific and Services Directorate (“LSSD”) examined the Chehal Fe (CAS 12389-75-2 and CAS 85959-68-8). LSSD Report No. NY20170426, dated April 28, 2017, states the following:
Product name:
Chelal Fe
Chemical name:
Ferrate(2-),[rel-[N(R)]-N-[2-[bis[(carboxy-?O)methyl]amino-?N]ethyl]-N-[2-[(S)-[(carboxy-?O)methyl](carboxymethyl)amino-?N]ethyl]glycinato(5-)-?N,?O]-, sodium hydrogen (1:1:1)
CAS Number:
12389-75-2; Not listed in the Chemical Appendix to the HTSUS (2017)
Use:
Fertilizer
The product exists as an aqueous solution of the above separate chemically defined organic coordination compound. As per Note 5(c)3 to Chapter 29, classification would proceed based on the fragment remaining after “cleaving” all metal bonds, other than metal-carbon bonds. This fragment is an inorganic salt of an oxygen-function amino compound containing amino and carboxylic acid functional groups.
Product name:
Chelal Fe
Chemical name:
Ferrate(2-),[rel-[N(R)]-N-[2-[bis[(carboxy-?O)methyl]amino-?N]ethyl]-N-[2-[(S)-[(carboxy-?O)methyl](carboxymethyl)amino-?N]ethyl]glycinato(5-)-?N,?O]-, diammonium
CAS Number:
85959-68-8; Not listed in the Chemical Appendix to the HTSUS (2017)
Use:
Fertilizer
The product exists as an aqueous solution of the above separate chemically defined organic coordination compound. As per Note 5(c)3 to Chapter 29, classification would proceed based on the fragment remaining after “cleaving” all metal bonds, other than metal-carbon bonds. This fragment is an inorganic salt of an oxygen-function amino compound containing amino and carboxylic acid functional groups.
ISSUE:
Whether Chelal Fe (CAS 12389-75-2 and CAS 85959-68-8) is classified as oxygen-function amino-compound under heading 2922, HTSUS, or as other organic compound under heading 2942, HTSUS.
LAW AND ANALYSIS:
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 provisions under consideration in this case are as follows:
2922 Oxygen-function amino-compounds: Amino-acids, other than those containing more than one kind of oxygen function, and their esters; salts thereof:
2942 Other organic compounds:
Chapter Note 1(a) to Chapter 29, HTSUS, states, in pertinent part, “Except where the context otherwise requires, the headings of this chapter apply only to: (a) Separately defined organic compounds, whether or not containing impurities.”
Note 4 to Chapter 29, HTSUS states that for purposes of heading 2922, HTSUS, oxygen-function is restricted to the functions (the characteristic organic oxygen-containing groups) referred to in headings 2905 to 2920, HTSUS.
Note 5 to Chapter 29, HTSUS, states, in relevant part, that:
(C) Subject to note l to section VI and note 2 to chapter 28: ….
(3) Co-ordination compounds, other than products classifiable in subchapter XI or heading 2941, are to be classified in the heading which occurs last in numerical order in chapter 29, among those appropriate to the fragments formed by "cleaving" of all metal bonds, other than metal-carbon bonds.
In interpreting the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) may be utilized. The ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The ENs to 29.22 define the term “oxygen-function amino-compounds” to mean:
The term “oxygen-function amino-compounds” means amino-compounds which contain, in addition to an amine function, one or more of the oxygen functions defined in Note 4 to Chapter 29 (alcohol, ether, phenol, acetal, aldehyde, ketone, etc., functions), as well as their organic and inorganic acid esters. This heading therefore covers amino-compounds which are substitution derivatives of amines containing oxygen functions of headings 29.05 to 29.20, and esters and salts thereof.
The ENs to 29.22(D) defines amino-acids and their esters; salts thereof as:
These compounds contain one or more carboxylic acid functions and one or more amine functions. Anhydrides, halides, peroxides and peroxyacids of carboxylic acids are regarded as acid functions.
These compounds contain as oxygen functions only acids, their esters or their anhydrides, halides, peroxides and peroxyacids or a combination of these functions. Any oxygen function found in a non-parent segment attached to a parent amino-acid is disregarded for classification purposes.
The Subheading ENs to 29.22 state that:
For subheading classification purposes, ether or organic or inorganic acid ester functions are regarded either as alcohol, phenol or acid functions, depending on the position of the oxygen function in relation to the amine group. In these cases, only those oxygen functions present in that part of the molecule situated between the amine function and the oxygen atom of either the ether or the ester function should be taken into consideration. A segment containing an amine function is referred to as a “parent” segment. For example, in the compound 3-(2-aminoethoxy)propionic acid, the parent segment is aminoethanol, and the carboxylic acid group is disregarded for classification purposes; as an ether of an amino-alcohol, this compound is classifiable in subheading 2922.19.
If the compound contains two or more ether or ester functions, the molecule is segmented for classification purposes at the oxygen atom of each ether or ester function, and the only oxygen functions considered are those found in the same segment as an amine function.
If the compound has two or more amine functions linked to the same ether or ester function, it is classifiable in the subheading that is last in numerical order; that subheading is determined by considering the ether or ester function as either an alcohol, phenol or acid function, in relation to each amine function.
The ENs to 29.42 state as follows:
This heading covers separate chemically defined organic compounds not classified elsewhere.
(1) Ketenes*. Like ketones, these are characterised by a carbonyl group (>C=O) but it is linked to the neighbouring carbon atom by a double bond (e.g., ketene, diphenylketene).
This heading however excludes diketene which is a lactone of heading 29.32.
(2) Boron trifluoride complexes with acetic acid, diethyl ether or phenol*.
(3) Dithymol di iodide.
There is no dispute that Chelal Fe (CAS 12389-75-2 and CAS 85959-68-8) is properly classified in Chapter 29, HTSUS as a separate chemically defined organic compound within the meaning of Note 1(a) to Chapter 29, HTSUS. At issue is the appropriate heading. Chelal Fe (CAS 12389-75-2 and CAS 85959-68-8) can only be classified as “other organic compounds” in heading 2942, HTSUS if it cannot be classified elsewhere. See ENs to 24.42. Therefore, if Chelal Fe can be classified in heading 2922, HTSUS, it cannot be classified in heading 2942.
Heading 2922, HTSUS covers compounds that contain one or more carboxylic acid functions and one or more amine functions. See ENs to 29.22(D). The instant Chelal Fe contains DTPA, a chelating agent, which is aminopolycarboxylic acid. An aminopolycarboxylic acid is a chemical compound containing one or more nitrogen atoms connected through carbon atoms to two or more carboxyl groups. The parent of this family of ligands is the amino acid glycine. See Subheading ENs to 29.22. Pursuant to Note 5(C)(3) to Chapter 29, HTSUS, classification will be based on the fragment remaining after “cleaving” all metal bonds other than metal-carbon bonds. This fragment is an inorganic salt of an oxygen-function amino compound containing amino and carboxylic acid functional groups.
In NY N281433, dated Dec. 22, 2016, CBP classified DTPA-FE (Diethylenetriamine Penta Acetic Acid, Ferric Sodium complex, CAS 12389-75-2) as an amino acid salt under heading 2922, HTSUS, specifically under subheading 2922.49.80, HTSUS. In NY N014827, dated Aug. 2, 2007, CBP classified pentetic acid (also known as DTPA) as amino acid under heading 2922, HTSUS. Similarly, in two other rulings, CBP classified zinc ethylenediaminetetraacetic acid (also known as Zinc EDTA) and edetic acid tetrasodium salt used as a plant food chelating ingredient under heading 2922, HTSUS. See NY N274697, dated Apr. 25, 2016 (Zinc EDTA); NY H85081, dated Aug. 27, 2001 (edetic acid tetrasodium salt).
The product in NY N281433 (CAS 12389-75-2) is the same as the Chelal Fe in NY A88070, NY A87653 and NY H86531, and has the same CAS number. CAS 12389-75-2 is essentially iron chelated by DTPA similar to the Zinc EDTA (zinc chelated by EDTA) in NY N274697. Both EDTA and DTPA are aminopolycarboxylic acids and synthetic chelating agents. Similarly, per Note 5(C)(3) to Chapter 29, HTSUS, the Chelal Fe (CAS 12389-75-2 and CAS 85959-68-8) needs to be classified in heading 2922, HTSUS, based on the fragment remaining after “cleaving,” which is an inorganic salt of an oxygen-function amino compound containing amino and carboxylic acid functional groups.
Because the subject Chelal Fe (CAS 12389-75-2 and CAS 85959-68-8) is described by heading 2922, HTSUS, it is not classifiable under heading 2942, HTSUS, as “other organic compound.”
HOLDING:
By application of GRIs 1 and 6, Chelal Fe (CAS 12389-75-2 and CAS 85959-68-8) is classified under heading 2922, HTSUS, specifically under subheading 2922.49.80, HTSUS, which provides for “Oxygen-function amino-compounds: Amino-acids, other than those containing more than one kind of oxygen function, and their esters; salts thereof: Other: Other: Other: Other.” The column one, duty rate is 3.7 percent ad valorem.
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 at https://hts.usitc.gov/current.
EFFECT ON OTHER RULINGS:
NY A88070, dated Feb. 5, 1997, and NY A87653, dated Sept. 26, 1996, are hereby REVOKED.
NY H86531, dated Feb. 4, 2002, is hereby MODIFIED.
In accordance with 19 U.S.C. § 1625(c), these rulings will become effective 60 days after their publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division