OT:RR:CTF:CPMM H270889 APP
Area Port Director
Service Port – Charleston
U.S. Customs and Border Protection
200 East Bay Street
Charleston, South Carolina 29401
Attn.: Heather Puckhaber, Import Specialist
RE: Request for Internal Advice; Tariff classification of a Mancozeb Wet Cake
Dear Area Port Director:
This is in reference to your October 9, 2015 request for internal advice, initiated by United Phosphorus, Inc. (“requestor” or “UPI”), pertaining to the tariff classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of a Mancozeb Wet Cake from Colombia. Our response follows.
FACTS:
The merchandise at issue is identified as a Mancozeb Wet Cake (CAS No. 8018-01-7), known as Manzeb and Mancozeb. It is a raw material used in the production of UPI pesticide products registered with the U.S. Environmental Protection Agency (“EPA”). The Mancozeb Wet Cake, in its condition as imported, is not packaged for retail sale.
The Mancozeb Wet Cake production process goes through several stages. During the first stage, carbon disulfide is reacted with ethylene diamine to form an acid that is converted into an intermediate product, Nabam, by reacting with caustic soda. During the precipitation stage, Nabam reacts with manganese sulfate and zinc sulfate solutions to precipitate the active ingredient Mancozeb Wet Cake. During the filtration stage, the Mancozeb Wet Cake is filtered to extract soluble salts and/or sub-products of previous reactions, to increase the cake’s concentration. After this stage, the cake is sent for packaging.
The Mancozeb Wet Cake is designed to be applied as a dilute suspension through liquid spraying equipment. The filtered wet cake is mixed with adjuvants and water in a repulp tank to formulate the fungicide finished product.
In its laboratory report dated June 28, 2012, U.S. Customs and Border Protection (“CBP”) Laboratories and Scientific Services Division (“LSSD”), Newark Laboratory stated the following:
Product Name: Manzate wet cake
CAS Name: Manganese, [N- [2-dithiocarboxy)amino)ethyl)carbamodithioato
(2-)-kS, kS’] zinc
Other CAS Names: Carbamic acid, ethylenebis(dithio-, manganese zinc complex (8CI); Mancozeb; Dithane
CAS No.: 8018-01-7; Not in the Chemical Appendix for the HTSUS (2012)
Uses: Pesticide – Fungicide …
The product, Manzate Wet Cake, is a complex mixture of ethylenebis (dithiocarbamate) with manganese and zinc. The product is a fungicide for food and non-food crops.
Rulings: NY 811721; NY 818024; N007374
WCO Document: N0441E1
EPA’s website reveals that Mancozeb is a member of the ethylene bisdithiocarbamate group of fungicides and was first registered by the EPA in 1948.
ISSUE:
Whether the subject Mancozeb Wet Cake is classified under heading 2930, HTSUS, as an organo-sulfur compound, or under heading 3808, HTSUS, as an fungicidal preparation, or under heading 3824, HTSUS, as a preparation not elsewhere specified or included.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification shall be determined first 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 be applied in order. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
The following HTSUS provisions are under consideration:
2930 Organo-sulfur compounds:
3808 Insecticides, rodenticides, fungicides, herbicides, antisprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packings for retail sale or as preparations or articles (for example, sulfur-treated bands, wicks and candles, and flypapers):
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:
Note 1(a) to chapter 29, HTSUS, states, in relevant part, that “[e]xcept where the context
otherwise requires, the headings of this chapter apply only to: (a) Separate chemically defined organic compounds, whether or not containing impurities.”
The Explanatory Notes of the Harmonized Commodity Description Coding System (“ENs”) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are generally indicative of the proper interpretation of these headings. See T.D. -80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
General EN 29.30 states, in relevant part, that:
The organo-inorganic compounds covered by headings 29.30 and 29.31 are organic compounds whose molecules contain, in addition to atoms of hydrogen, oxygen or nitrogen, those of metals or other non-metals (such as sulphur, arsenic, lead, iron, etc.) directly linked to carbon.
Heading 29.30 (organo-sulphur compounds) and heading 29.31 (other organo-inorganic compounds) do not include sulphonated or halogenated derivatives (including compound derivatives) which, apart from hydrogen, oxygen and nitrogen, only have directly linked to carbon the atoms of sulphur or of halogens which give them their nature of sulphonated or halogenated derivatives (or compound derivatives).
EN 38.08 states, in relevant part:
This heading covers a range of products … intended to destroy pathogenic germs, insects … mosses and moulds, weeds, rodents, wild birds, etc. … These insecticides, disinfectants, herbicides, fungicides, etc., are applied by spraying, dusting, sprinkling, coating, impregnating, etc., or may necessitate combustion. They achieve their results by nerve poisoning, by stomach poisoning, by asphyxiation or by odour, etc. …
These products are classified here in the following cases only: … (2) When they have the character of preparations, whatever the presentation (e.g., as liquids, washes or powders). These preparations consist of suspensions or dispersions of the active product in water or in other liquids … Intermediate preparations, requiring further compounding to produce the ready for use insecticides, fungicides, disinfectants, etc., are also classified here, provided they already possess insecticidal, fungicidal, etc., properties ….
EN 38.08(II) defines “fungicides” as:
Fungicides are products which protect against the growth of fungi (e.g., preparations based on copper compounds) or which are designed to eradicate the fungi already present (e.g., preparations based on formaldehyde).
UPI asserts that the Mancozeb Wet Cake is classifiable in heading 3808, HTSUS, because in its condition as imported, it is a mixture of two or more inorganic compounds, which together possess the essential qualities of a fungicide. In the alternative, UPI argues that the merchandise is classifiable in heading 2930, HTSUS, as a separate chemically defined compound. According to UPI, the product is not classifiable in heading 3824, HTSUS.
First, we note that the Mancozeb Wet Cake at issue is a formulated fungicidal preparation that is processed beyond the definition of Chapter 29, Note 1(a), HTSUS, as a separate chemically defined organic compound, whether or not containing impurities. The CBP LSSD confirmed that the Mancozeb Wet Cake was a complex mixture of ethylenebis (dithiocarbamate) with manganese and zinc. As such, the instant Mancozeb Wet Cake is not classifiable under heading 2930, HTSUS.
We will next determine whether the Mancozeb Wet Cake is a fungicidal preparation of heading 3808, HTSUS. If the merchandise can be classified in heading 3808, HTSUS, then there is no need to resort to heading 3824, HTSUS.
Per EN 38.08, heading 3808 covers merchandise that has the character of a preparation (suspensions or dispersions of a product in water or other liquid) in its condition as imported, or, at least, of an intermediate preparation with fungicidal properties. See NY N203416 and
NY N151859 cited by UPI, supra. We find that the Mancozeb Wet Cake is an intermediate preparation that already possesses the fungicidal properties of the final commercial product. It is a mixture of ethylenebis (dithiocarbamate) with manganese and zinc, which together possess fungicidal properties. Mancozeb is the active ingredient (58% by weight). The CBP LSSD determined the Mancozeb Wet Cake to be a fungicide for food and non-food crops. The wettable powder will ultimately be mixed with adjuvants and water, and will be applied as a dilute suspension. We further note that Mancozeb is registered as a fungicide with the EPA. The main component of the Mancozeb Wet Cake, Mancozeb, is eo nomine, provided for in heading 3808, HTSUS, under subheading 3808.90.24, HTSUS. Based upon all these factors, we find that the Mancozeb Wet Cake is an intermediate preparation possessing the essential properties of a fungicide for classification purposes.
CBP has consistently classified intermediate preparations with fungicidal or insecticidal properties in heading 3808, HTSUS. In Headquarters Ruling Letter (“HQ”) 086042, dated March 13, 1990, CBP classified a a water borne concentrate of inorganic metal oxides of arsenic, copper and chromium, to be diluted by the customer to an appropriate concentration of water, in
heading 3808, HTSUS, as an intermediate preparation possessing the essential qualities of a fungicide. In HQ H235513, dated April 8, 2014, CBP classified a concentrated organophosphate insecticide to be sprayed directly by professional pest control handlers after dilution with water in heading 3808, HTSUS, as an insecticidal preparation. In HQ 965291, dated July 19, 2002, CBP classified a technical grade neem extract in the form of powder derived from neem kernels manufactured from neem seeds mixed with water and used to prepare ready-for-use formulations for pest management in heading 3808, HTSUS, as an intermediate preparation that possesses insecticidal properties.
Moreover, in NY 811721, dated June 29, 1995, CBP classified a fungicide preparation containing the active ingredients, Dimethomorph and Mancozeb, which were going to be put up as water-dispersible granules, in heading 3808, HTSUS, as fungicides put up as preparations. In NY 818024, dated March 19, 1996, CBP classified a fungicidal preparation, containing the fungicide Mancozeb as the active ingredient, in heading 3808, HTSUS. In NY N007374, dated March 9, 2007, CBP classified a prepared fungicide, to be imported in wettable powder and granular forms, containing Mancozeb and Mefenoxam as the active ingredients, in heading 3808, HTSUS.
Just like the preparations in NY 811721, NY 818024, and NY N007374, the instant Mancozeb Wet Cake possesses fungicidal properties. Similar to HQ 086042, HQ H235513, and HQ 965291, it is an intermediate preparation of heading 3808, HTSUS, because it will be mixed with water and adjuvants to prepare the final formulation. The Mancozeb Wet Cake is a fungicide preparation in a wettable powder form, containing the fungicide Mancozeb, which is registered with the EPA and will be applied by the customer as a dilute suspension through liquid spraying equipment on crops. Accordingly, the Mancozeb Wet Cake is classifiable in
heading 3808, HTSUS.
HOLDING:
By application of GRIs 1 and 6, the instant Mancozeb Wet Cake is classified in
heading 3808, HTSUS, specifically under subheading 3808.92.24, HTSUS, which provides for: “Insecticides, rodenticides, fungicides, herbicides, antisprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packings for retail sale or as preparations or articles (for example, sulfur-treated bands, wicks and candles, and flypapers): Other: Fungicides: Other: Containing any fungicide which is a thioamide, thiocarbamate, dithiocarbamate, thiuram or isothiocyanate: Maneb; Zineb; Mancozeb; and Metiram.” The column one, general rate of duty is Free.
Duty rates are provided for 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.
You are to mail this decision to the requestor no later than 60 days from the date of the decision. At that time, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and to the public on the Customs Rulings Online Search System (“CROSS”), at https://rulings.cbp.gov/, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division