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HQ 955757




March 19, 1998

CLA-2 RR:CR:GC 955757 HMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 3823.90.39

Port Director of Customs
1 East Bay St.
Savannah, GA 31401

RE: Protest 1703-93-100174; Carnal 659S; Subheading 2835.31.00; Chapter 28, Note 1(a); General Explanatory Note to Chapter 28; Sodium Tripolyphosphate; Mixtures of Two or More Inorganic Compounds.

Dear Port Director:

This is our decision on Protest 1703-93-100174, filed against your classification under the Harmonized Tariff Schedule of the United States (HTSUS), of Carnal 659S. The entries under protest were liquidated on September 24, 1993, and this protest timely filed on December 8, 1993. Please note that HQ 957454, HQ 958403 and HQ 959887, involving the same merchandise, were also issued on this date. Samples were submitted for laboratory tests.

FACTS:

The product, Carnal 659S, is made of sodium tripolyphosphate, sodium pyrophosphate and sodium hexametaphosphate. Carnal 659S is manufactured from 100% pure sodium tripolyphosphate by decreasing the purity of the compound until the proper yield and solubility is reached. Specifically, the importer claims that the merchandise is a combination of 80% sodium tripolyphosphate, 5% sodium pyrophosphate and 15% sodium hexametaphosphate.

The merchandise was entered under subheading 3823.90.39, HTSUS, as other mixtures of two or more inorganic compounds. However, the entries were liquidated under subheading 2835.31.00, HTSUS, as a single compound of sodium tripolyphosphate.

The provisions under consideration are as follows:

2835 Phosphinates (hypophosphites), phosphonates (phosphites), phosphates and polyphosphates: Polyphosphates:
2835.31.00 Sodium Triphosphate(Sodium tripolyphosphate)...1.4%(1993)

3823 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; residual products of the chemical or allied industries, not elsewhere specified or included:
Other:
Other:
3823.90 Mixtures of two or more inorganic compounds:
3823.90.39 Other:...Free(1993)

ISSUE:

Whether the chemical compound Carnal 659S is classifiable as a mixture of two or more inorganic compounds under subheading 3823.90.39, HTSUS, or as a single compound of sodium tripolyphosphate under subheading 2835.31.00, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS, in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

Chapter 28, Note 1(a), HTSUS, states that

Except where the context otherwise requires, the headings of this chapter apply only to:

(a) Separate chemical elements and separate chemically defined compounds, whether or not containing impurities;

The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized system. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the Notes should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

General EN (A) to Chapter 28, HTSUS, at page 238, states that separate chemical elements and separate chemically defined compounds containing impurities, or dissolved in water, remain classified in Chapter 28.

The EN further states that

[t]he term "impurities" applies exclusively to substances whose presence in the single chemical compound results solely and directly from the manufacturing process (including purification). The substances may result from any of the factors involved in the process and are principally the following: (a) unconverted starting materials; (b) impurities present in the starting materials; (c) reagents used in the manufacturing process (including purification); (d) by-products.

The EN continues to say

[i]t should be noted, that such substances are not in all cases regarded as "impurities" permitted under Note 1(a). When such substances are deliberately left in the product with a view to rendering it particularly suitable for specific use rather than for general use, they are not regarded as permissible impurities.

In this instance, the importer has provided a specification sheet that describes Carnal 659S as a combination of sodium tripolyphosphate, sodium pyrophosphate and sodium hexametaphosphate, which has been instantized for rapid solubility. Specifically, the importer claims that the merchandise is made of 80% sodium tripolyphosphate, 5% sodium pyrophosphate and 15% sodium hexametaphosphate. The specification data sheet also states that the merchandise was developed specifically for use in marinades and pickling brines that contain high levels of salt and phosphate. This instantizing process permits the product to dissolve completely at low temperatures in the presence of salt or hard water. Carnal 659S is thus produced under controlled conditions to ensure that the product's constant composition is suitable for a specific use rather than for general applications.

We note Hawley's Twelfth Edition of the Condensed Chemical Dictionary, at page 1072, as well as other technical references, which state that sodium tripolyphosphate may contain up to 10% pyrophosphate and up to 5% tri-metaphosphate. We thus believe that Carnal 659S may contain up to 15% of impurities. Since the merchandise contains 20% of substances other than sodium tripolyphosphate, we believe that these substances are not impurities but additives deliberately left in the product.

The Customs Office of Laboratory and Scientific Services in Savannah, Georgia, performed two analyses on samples of Carnal 659S. In laboratory report 4-93-20884-001, dated July 6, 1993, it concluded that Carnal 659S was not a mixture of two or more inorganic compounds. On November 3, 1994, at the request of the Los Angeles laboratory for an analysis on a new sample of Carnal 659S, the Savannah Laboratory issued Customs Laboratory report 4-95-20039, in which it again concluded that Carnal 659S was a single inorganic compound containing trace amounts of calcium, iron and zinc. Based on this report, the Los Angeles laboratory issued Customs Laboratory report 7-95-20006-001, dated November 7, 1994, which restated the Savannah Laboratory's conclusions. A sample of Carnal 659S was subsequently sent to the New York laboratory for additional analyses. The New York laboratory did not issue a report but responded to the National Import Specialist that they could not ascertain whether Carnal 659S was a mixture or a single compound.

In order to reconcile conflicting reports by the New York and Savannah laboratories, the Customs Headquarters Office of Laboratory and Scientific Services issued its own Laboratory Report. The report determined that the classification of Carnal 659S should be analytically based. However, the laboratory found that tests conducted on the product showed inconsistencies when using X-ray diffraction (XRD) analyses. The tests failed to positively identify the components of Carnal 659S. The laboratory concluded that it could not ascertain an alternative method of testing and that the information provided by the importer showed Carnal 659S should be considered a mixture.

Based on the information provided by the importer and the laboratory report, we find that Carnal 659S is a mixture of two or more inorganic compounds, classifiable under subheading 3823.90.39 (currently 3824.90.39). We however believe that this finding in no way precludes Customs from conducting future tests of the merchandise to determine its composition. This is consistent with the findings of NY 834907, dated January 17, 1989, and NY 895972, dated July 22, 1994. In these rulings, Customs classified Carnal 659S under subheading 3823.90.39, HTSUS, as other mixtures of two or more inorganic compounds.

HOLDING:

Under the authority of GRI 1, Carnal 659S is provided for in heading 3823, HTSUS. It is classifiable under subheading 3823.90.39, HTSUS, as other mixtures of two or more inorganic compounds: Other. The 1993 rate of duty is free.

This protest should be GRANTED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you should mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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