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HQ 960202




April 6, 1998

CLA-2 RR:CR:GC 960202 ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 3824.90.9050; 3105.10.00/3105.20.00.

Mr. Alan Rubin
BMS Micro-Nutrients NV
5405 Alton Parkway, Suite 5-A-612
Irvine, California 92714

RE: Chelal B, Chelal Zn, Chelal Ca, and Fructol; NY A85489 revoked.

Dear Mr. Rubin:

This is in reference to New York Ruling Letter (NY) A85489, issued to you on September 26, 1996, regarding the tariff classification of fertilizers identified as Chelal B (Boron), Chelal Zn (Zinc), Chelal Ca (Calcium), and Fructol under the Harmonized Tariff Schedule of the United States (HTSUS). Customs has reviewed the ruling and has determined that, in addition to containing typographical errors, the ruling is incorrect. Therefore, this ruling revokes NY A85489.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), 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), notice of proposed revocation of NY A85489 was published on March 4, 1998, in the Customs Bulletin, Volume 32, No 9. No comments were received in response to the notice.

FACTS:

On June 29, 1996, you requested a tariff classification ruling for several fertilizer products. NY A85489, which covered the articles, was issued on September 26, 1996. Three of the articles in question, Chelal B, Chelal Zn, and Chelal Ca are aqueous solutions which are used as fertilizers to remedy soil conditions in which certain chemical deficiencies exist. The fourth, Fructol, is a fertilizer with a wider variety of chemical nutrients. Unfortunately, the Customs laboratory reports upon which NY A85489 relied were based upon an erroneous interpretation of written materials you had submitted. The erroneous laboratory reports, and the articles they covered are: Chelal B: 2-96-22569-001; Chelal Ca: 2-96-22572-001; and Chelal, Zn: 2-96-22570-001.

In preparing for this ruling, a new series of laboratory reports on the articles were requested. The results of the new Customs laboratory reports are as follows:

Customs laboratory report 2-96-22879-001, issued 10/16/96, identifies Chelal B as an aqueous solution of Boron chelated with: 1,2-Diol;1,2,3-Triol; Monoethanolamine; Diethanolamine; and Triethanolamine.

Customs laboratory report 2-96-22882-001, issued 10/16/96, identifies Chelal Zn as an aqueous solution of Zinc chelated with: Hydroxyethylenediaminetriacetic acid, ethylenediaminetetraacetic acid and diethylenetriaminepentaacetic acid.

Customs laboratory report 2-96-22880-001, issued 10/16/96, identifies Chelal Ca as an aqueous solution of calcium oxide, calcium oxide chelated with diethylenetriaminepentaacetic acid and calcium chelated with diethylenetriaminepentaacetic acid.

Customs laboratory report 2-96-22881-001, issued 10/16/96 identifies Fructol as a mixture of nitrogen compounds, phosphoric acid, potassium carbonate and various metals chelated with ethylenediaminetraacetic acid and diethylenetriaminepentaacetic acid.

All of the articles under consideration are identified as being fertilizers. The new laboratory reports suggest that Chelal B, Chelal Zn, and Chelal Ca be classified in subheading 3824,90.9050, HTSUS, and that Fructol be classified either in subheading 3105.10.00 or 3105.20.00, HTSUS, depending on the form and volume in which it is imported.

ISSUE:

What is the proper classification of Chelal B (Boron), Chelal Zn (Zinc), Chelal Ca (Calcium) and Fructol?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRI). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes.

The headings under consideration are:

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:

3105.10.00 Products of this chapter in tablets or similar forms or in packages of a gross weight not exceeding 10 kg.

3105.20.00 Mineral or chemical fertilizers contain- ing the three fertilizing elements nitrogen, phosphorus and potassium.

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; residual products of the chemical or allied industries, not elsewhere specified or included):

3824.90 Other:
Other:
Other:
Other:
3824.90.90 Other:

3824.90.9050 Other.

Chapter Note 6 to Chapter 31, HTSUS, is pertinent to the products at issue and states: "[F]or 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 articles under consideration, Chelal B, Chelal Z, and Chelal Ca do not contain nitrogen, phosphorous or potassium as an essential constituent. Thus, according to Chapter Note 6, they are not eligible for classification in heading 3105. Because the articles are chemical products, not elsewhere specified or included, they are properly classified in subheading 3824.90.9050, HTSUS.

Fructol does contain at least one of the enumerated elements necessary for classification in heading 3105. Depending upon the form and volume in which it is imported, Fructol is properly classified in subheading 3105.10.00 or 3105.20.00, HTSUS.

HOLDING:

The classification for Chelal B (Boron), Chelal Zn (Zinc), and Chelal Ca (Calcium) is subheading 3824.90.9050, HTSUS, which provides for prepared binders for factory 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: other: other: other: other.

The classification for Fructol, if imported in containers having a gross weight of 10 kg or less, will be subheading 3105.10.00, HTSUS, which provides for mineral or chemical fertilizers containing two or three of the fertilizing elements nitrogen, phosphorous and potassium; other fertilizers; goods of this chapter in tablets or similar forms or in packages of a gross weight not exceeding 10 kg: products of chapter 31 in tablets or similar forms or in packages of a gross weight not exceeding 10 kg. If Fructol is imported in containers having a gross weight in excess of 10 kg, the applicable subheading will be 3105.20.00, HTSUS, which provides for mineral or chemical fertilizers containing the three fertilizing elements nitrogen, phosphorus and potassium.

NY A85489, dated September 26, 1996, is revoked.

In accordance with 19 U.S.C. 1625(c)(1), this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625 (c)(1) does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).

Sincerely,

John A. Durant, Director
Commercial Rulings Division

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