CLA-2 RR:CR:GC 960532 HMC
Ms. Nancy Meliere Cymbalsky
Gallard-Schlesinger Industries, Inc.
584 Mineola Ave.
Carle Place, NY 11514-1731
RE: Carnal 822; 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 Ms. Cymbalsky:
This is in response to your letter to the Customs National
Commodity Specialist Division, New York, dated April 14, 1997, on
behalf of Gallard-Schlesinger Industries, Inc., regarding the
tariff classification of Carnal 822 under the Harmonized Tariff
Schedule of the United States (HTSUS). Your letter was forwarded
to this office for a reply. We regret the delay.
FACTS:
The product, Carnal 822, is made of sodium tripolyphosphate,
tetrasodium pyrophosphate and sodium acid pyrophosphate. Carnal
822 is very similar to Carnal 659S, another phosphate product
from Gallard-Schlesinger Industries, Inc., subject of various New
York and Customs Headquarters rulings. Specifically, you claim
that the merchandise is a combination of 75% sodium
tripolyphosphate, 15% tetrasodium pyrophosphate and 10% sodium
acid pyrophosphate. Literature provided states that Carnal 822
represents a new generation of phosphates, specially developed
for use in ice cold brines and marinades and where high levels of
salt and phosphates are present.
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%
* * * *
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:
Other:
Other:
3824.90 Mixtures of two or more inorganic
compounds:
3824.90.39 Other:...Free
ISSUE:
Whether the chemical compound Carnal 822 is classifiable as
a mixture of two or more inorganic compounds under subheading
3824.90.39, 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 (EN's) constitute the official interpretation
of the Harmonized system. While not legally binding on the
contracting parties, and therefore not dispositive, the EN's
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 EN's 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.
The issue involved in this matter was considered in HQ
957454, HQ 955757, HQ 958403 and HQ 959887, all dated March 19,
1998, which classified Carnal 659S, a compound of 80% sodium
tripolyphosphate, as a mixture. Citing a technical dictionary
and a laboratory report from the Customs Headquarters' Office of
Laboratory and Scientific Services, these rulings concluded that
Carnal 659S, could contain up to 15% of impurities. Similarly,
in this instance, we believe that Carnal 822, may contain up to
15% of impurities. Since the merchandise contains 25% of
substances other than sodium tripolyphosphate, we believe that
these substances are not impurities but additives deliberately
left in the product.
In addition, as with Carnal 659S, you have provided a
specification sheet that describes Carnal 822 as a combination of
sodium tripolyphosphate, tetrasodium pyrophosphate and sodium
acid pyrophosphate, developed specifically for use in marinades
and pickling brines that contain high levels of salt and
phosphate. The literature shows that Carnal 822 is produced
under controlled conditions to ensure that the product's constant
composition is suitable for a specific use rather than for
general applications.
Based on the information provided, we find that Carnal 822
is a mixture of two or more inorganic compounds, classifiable
under subheading 3824.90.39. We however believe that this
finding in no way precludes Customs from conducting tests of the
merchandise to determine its composition.
HOLDING:
Carnal 822 is provided for in heading 3824, HTSUS. It is
classifiable under subheading 3824.90.39, HTSUS, as other
mixtures of two or more inorganic compounds: Other. The rate of
duty is free.
Sincerely,
John Durant, Director
Commercial Rulings Division