OT:RR:CTF:CPMMA H322230 AJK
Center Director
Pharmaceuticals, Health and Chemicals Center for Excellence and Expertise
7141 Office City Drive
Houston, TX 77087
Attn: Tracy L. Coffield, Import Specialist
RE: Application for Further Review of Protest No. 5301-19-100709; Classification of
Metrixx (Metribuzin 70% WDG)
Dear Center Director,
This is in reply to the Application for Further Review (AFR) of Protest No.
5301-19-100709, filed on January 29, 2019, on behalf of Sharda Cropchem Limited (Protestant), contesting U.S. Customs and Border Protection’s (CBP) classification and liquidation of Metrixx (Metribuzin 70% WDG) (hereinafter, “Metrixx”) in subheading 3808.93.15, Harmonized Tariff Schedule of the United States (HTSUS), as other aromatic or modified aromatic herbicides. The subject merchandise was entered on January 7, 2018. Protestant now claims that the merchandise is classified in subheading 2933.69.6021, HTSUSA (Annotated), as heterocyclic compounds with nitrogen hetero-atoms only.
FACTS:
The product under consideration is Metrixx, which is a granular herbicide that controls certain grasses and broadleaf weeds in various vegetable and field crops. Metrixx consists of 70 percent of metribuzin and 30 percent of other ingredients. The other ingredients include kaolin (CAS No. 1332-58-7), amorphous silica (CAS No. 112926-00-8), and proprietary blends of other inert ingredients. Kaolin and amorphous silica are inorganic substances. Metribuzin (CAS No. 21087-64-9), which is also known as 4-Amino-6-(1,1-dimethylethyl)-3-(methylthio)-1,2,4-triazin-5 (4H)-one, is a member of the class of 1,2,4-triazines that is 1,2,4-triazin-5(4H)-one substituted by an amino group at position 4, tert-butyl group at position 6, and a methylsulfanyl group at position 3.
ISSUE:
Whether Metrixx is classified in heading 2933, HTSUS, as heterocyclic compounds with nitrogen hetero-atoms only, or subheading 3808, HTSUS, as herbicides.
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3)(2006)). Further review of Protest No. 5301-19-100709 is properly accorded pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve a question of law or fact that has not previously been ruled upon by CBP or the courts.
The classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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.
GRI 2(b) states as follows:
Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of Rule 3.
* * * *
The HTSUS headings under consideration are as follows:
2933 Heterocyclic compounds with nitrogen hetero-atom(s) only:
Compounds containing an unfused triazine ring (whether or not hydrogenated) in the structure:
2933.69 Other:
2933.69.60 Other
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):
Other:
3808.93 Herbicides, anti-sprouting products and plant-growth regulators:
Containing any aromatic or modified aromatic herbicide, anti-sprouting agent or plant-growth regulator:
3808.93.15 Other
Other:
3808.93.20 Containing an inorganic substance
* * * *
Additional U.S. Note (AUSN) 2 to section VI provides, in pertinent part, as follows:
2. For the purposes of the tariff schedule:
(a) The term "aromatic" as applied to any chemical compound refers to such compound containing one or more fused or unfused benzene rings;
(b) The term "modified aromatic" describes a molecular structure having at least one six-membered heterocyclic ring which contains at least four carbon atoms and having an arrangement of molecular bonds as in the benzene ring or in the quinone ring, but does not include any such molecular structure in which one or more pyrimidine rings are the only modified aromatic rings present ….
Note 1 to chapter 29 provides, in pertinent part, as follows:
1. Except where the context otherwise requires, the headings of this chapter apply only to:
(a) Separate chemically defined organic compounds, whether or not containing impurities ….
Note 1 to chapter 38 provides, in pertinent part, as follows:
1. This chapter does not cover:
(a) Separate chemically defined elements or compounds with the exception of the following:
…
(2) Insecticides, rodenticides, fungicides, herbicides, antisprouting products and plant-growth regulators, disinfectants and similar products put up as described in heading 3808 ….
* * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System (HS) at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HS and are thus useful in ascertaining the proper classification of merchandise. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The General EN to GRI 2(b) provides, in pertinent part, as follows:
(X) Rule 2 (b) concerns mixtures and combinations of materials or substances, and goods consisting of two or more materials or substances. The headings to which it refers are headings in which there is a reference to a material or substance (e.g., heading 05.07 - ivory), and headings in which there is a reference to goods of a given material or substance (e.g., heading 45.03 - articles of natural cork). It will be noted that the Rule applies only if the headings or the Section or Chapter Notes do not otherwise require (e.g., heading 15.03 - lard oil, not ... mixed).
Mixtures being preparations described as such in a Section or Chapter Note or in a heading text are to be classified under the provisions of Rule 1.
The General EN to chapter 29 provides, in pertinent part, as follows:
As a general rule, this Chapter is restricted to separate chemically defined compounds, subject to the provisions of Note 1 to the Chapter.
(A) Chemically defined compounds
(Chapter Note 1)
A separate chemically defined compound is a substance which consists of one molecular species (e.g., covalent or ionic) whose composition is defined by a constant ratio of elements and can be represented by a definitive structural diagram. In a crystal lattice, the molecular species corresponds to the repeating unit cell.
Separate chemically defined compounds containing other substances deliberately added during or after their manufacture (including purification) are excluded from this Chapter.
EN 29.33 provides, in pertinent part, as follows:
The heterocyclic compounds covered by this heading are:
…
(F) Compounds containing an unfused triazine ring (whether or not hydrogenated) in the
structure*.
EN 38.08 provides, in pertinent part, as follows:
This heading covers a range of products (other than those having the character of medicaments, including veterinary medicaments - heading 30.03 or 30.04) intended to destroy pathogenic germs, insects (mosquitoes, moths, Colorado beetles, cockroaches, etc.), mosses and moulds, weeds, rodents, wild birds, etc….
These products are classified here in the following cases only:
…
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 (e.g., a dispersion of DDT (ISO) (clofenotane (INN), (1,1,1-trichloro-2,2-bis(p-chlorophenyl)ethane) in water), or of other mixtures. Solutions of active products in solvents other than water are also included here (e.g., solutions of pyrethrum extract (other than standardised pyrethrum extract), or copper naphthenate in a mineral oil).
…
The products of heading 38.08 can be divided into the following groups:
…
(III) Herbicides, anti-sprouting products, plant-growth regulators
Herbicides are chemicals which are used to control or destroy unwanted plants. Some herbicides are applied to dormant plant parts or seeds, while other herbicides are applied to the whole foliage. They can provide control which is selective (herbicides which affect specific plants) or non-selective (herbicides which result in the complete eradication of vegetation).
* * * *
Metrixx is an herbicide—a chemical preparation, which contains 70 percent of metribuzin and 30 percent of other ingredients, used to control certain grasses and broadleaf weeds in various vegetable and field crops. Generally, the classification of mixtures or combinations of goods are analyzed under GRI 3(b), according to GRI 2(b). The subject merchandise, however, is restricted from proceeding to GRI 3, as EN (X) to GRI 2(b) provides that “[m]ixtures being preparations described as such in a Section or Chapter Note or in a heading text are to be classified under the provisions of Rule 1.” Accordingly, Metrixx is classified according to the heading that provides for the exact type of preparation at issue.
Heading 3808, HTSUS, is an eo nomine provision that provides for herbicides. See
HQ H270889, dated June 29, 2018. EN 38.08 provides that heading 3808, HTSUS, includes herbicides, such as the subject Metrixx, that “are chemicals which are used to control or destroy unwanted plants.” At the subheading level, herbicides are further classified based on whether they contain aromatic or modified aromatic herbicides. AUSN 2 to section VI provides that “[t]he term ‘aromatic’ as applied to any chemical compound refers to such compound containing one or more fused or unfused benzene rings”. AUSN 2 to section VI also defines “modified aromatic” as “a molecular structure having at least one six-membered heterocyclic ring which contains at least four carbon atoms and having an arrangement of molecular bonds as in the benzene ring or in the quinone ring, but does not include any such molecular structure in which one or more pyrimidine rings are the only modified aromatic rings present”. In the instant case, Metrixx does not meet the definitions of either “aromatic” or “modified aromatic”. Although the metribuzin component of Metrixx is heterocyclic, it has neither benzene rings nor four carbon atoms present in the 6-membered heterocyclic structure. Instead, the subject metribuzin is a member of the class of 1,2,4-triazines that is 1,2,4-triazin-5(4H)-one substituted by an amino group at position 4, tert-butyl group at position 6 and a methylsulfanyl group at position 3. The metribuzin component also contains a triazine ring. Accordingly, the classification of Metrixx upon liquidation under subheading 3808.93.15, HTSUS, as an aromatic or modified aromatic herbicide, was incorrect. Because Metrixx contains inorganic substances of kaolin and amorphous silica, in addition to metribuzin, it is properly classified in subheading 3808.93.20, HTSUS, which provides for other herbicides.
Protestant contends that the subject merchandise is properly classified in heading 2933, HTSUS, which provides for heterocyclic compounds containing an unfused triazine ring. We disagree. The classification of the subject merchandise is guided by EN (X) to GRI 2(b), which states that mixtures that are preparations described in a heading text are classified within that heading under GRI 1. Pursuant to note 1(a) to chapter 29, HTSUS, products of chapter 29 must be separate chemically defined compounds, which are defined as “a substance which consists of one molecular species (e.g., covalent or ionic) whose composition is defined by a constant ratio of elements and can be represented by a definitive structural diagram.” ENs to chapter 29; see also note 1 to chapter 29. The General ENs to chapter 29 also provide that chapter 29 excludes “[s]eparate chemically defined compounds containing other substances deliberately added during or after their manufacture”. In the instant case, Metrixx is an herbicidal chemical preparation containing metribuzin, which is a heterocyclic compound with an unfused triazine ring. While Metrixx consists of a component—metribuzin—that is a heterocyclic compound, Metrixx is not a heterocyclic compound because it contains other ingredients that were added to the metribuzin component during its manufacturing process. Therefore, pursuant to note 1 to chapter 29 and the General EN to chapter 29, Metrixx cannot be classified in heading 2933, HTSUS.
HOLDING:
By application of GRI 1, Metrixx is classified under heading 3808, HTSUS, specifically in subheading 3808.93.20, 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: Herbicides, anti-sprouting products and plant-growth regulators: Other: Containing an inorganic substance”. The 2018 column one, general rate of duty is 5% ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at www.usitc.gov.
You are instructed to DENY the protest, except to the extent reclassification of the merchandise is indicated above results in a partial allowance. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP 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 International Trade, Regulations and Rulings, will make the decision available to CBP personnel and to the public on the CBP Home Page at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Allyson Mattanah for
Craig T. Clark, Director
Commercial and Trade Facilitation Division