[Federal Register Volume 76, Number 251 (Friday, December 30, 2011)]
[Notices]
[Pages 82316-82317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-33603]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
[Docket No. USCBP-2011-0025]
Final Determination Regarding Petition To Reconcile Inconsistent
Customs Decisions Concerning the Tariff Classification of CN-9 Solution
AGENCY: U.S. Customs and Border Protection, Department of Homeland
Security.
ACTION: Notice of final determination regarding petition to reconcile
inconsistent customs decisions.
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SUMMARY: This document publishes a summary of a decision issued by U.S.
Customs and Border Protection (``CBP'') in response to a petition filed
pursuant to section 177.13 of the CBP regulations requesting the
reconciliation of inconsistent classification decisions issued by CBP
under the Harmonized Tariff Schedule of the United States (``HTSUS'')
of a certain CN-9 solution, a hydrated ammonium calcium nitrate double
salt that is primarily used as a
[[Page 82317]]
fertilizer but is also used for waste water treatment. In the decision,
CBP informed the party filing the petition that the correct
classification of the subject CN-9 Solution is under subheading
3102.60.00, HTSUS.
DATES: The final classification decision was issued on December 16,
2011. The classification set forth in the decision applies to all
entries of the described CN-9 Solution for which liquidation was not
finalized as of December 16, 2011.
FOR FURTHER INFORMATION CONTACT: Tamar Anolic, Tariff Classification
and Marking Branch, Regulations and Rulings, Office of International
Trade, (202) 325-0036.
SUPPLEMENTARY INFORMATION:
Background
I. Petition
A petition dated June 16, 2010 \1\ was filed under section 177.13
of the U.S. Customs and Border Regulations (``CBP'') regulations (19
CFR 177.13), on behalf of Yara North America, Inc. (``Yara'')
requesting the reconciliation of inconsistent classification decisions
under the Harmonized Tariff Schedule of the United States (``HTSUS'').
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\1\ The Federal Register (76 FR 48875) notice of August 9, 2011
erroneously listed the petition as being dated June 6, 2010.
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Yara is a subset of Yara International ASA, a global firm
specializing in agricultural products and environmental protection
agents. It is a supplier of mineral fertilizers. As an importer of
these products, Yara received inconsistent classification decisions on
its merchandise at different ports. The petition concerned Yara's
importation of CN-9 Solution, a hydrated ammonium calcium nitrate
double salt that is primarily used as a fertilizer but is also used for
waste water treatment. Yara entered the subject merchandise at the Port
of Long Beach between January 24, 2009 and September 8, 2009, and at
the Port of Baltimore on April 20, 2010, under subheading 3102.60.00,
HTSUS, as ``Mineral or chemical fertilizers, nitrogenous: Double salts
and mixtures of calcium nitrate and ammonium nitrate.'' Citing Legal
Note 2(a)(v) to Chapter 31, HTSUS,\2\ the Port of Long Beach liquidated
the subject merchandise as entered. Citing Legal Note 5 to Chapter 28,
HTSUS,\3\ the Port of Baltimore liquidated the subject merchandise
under subheading 2842.90.90, HTSUS, as ``Other salts of inorganic acids
or peroxoacids (including aluminosilicates whether or not chemically
defined), other than azides: Other: Other.''
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\2\ Legal Note 2(a)(v) to chapter 31, HTSUS, provides that:
``Heading 3102 applies only to the following goods, provided that
they are not put up in the forms or packages described in heading
3105: (a) Goods which answer to one or other of the descriptions
given below: [hellip] (v) Double salts (whether or not pure) or
mixtures of calcium nitrate and ammonium nitrate.''
\3\ Legal Note 5 to chapter 28, HTSUS, provides that: ``Headings
2826 to 2842 apply only to metal or ammonium salts or peroxysalts.
Except where the context otherwise requires, double or complex salts
are to be classified in heading 2842.''
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Yara met the requirements as an interested party set forth in 19
CFR 177.13(a)(2) and 19 U.S.C. 1514(c) and met the requirements
regarding the types of decisions subject to petition set forth in 19
CFR 177.13(a)(1) and 19 U.S.C. 1514(a). Furthermore, having filed the
petition within 180 days of the latest decision it received from a
port, Yara met the timeliness requirements of 19 CFR 177.13(a)(3).
Lastly, Yara also met the requirements of 19 CFR 177.13(b)(2), and
specifically 19 CFR 177.13(b)(2)(i) in that the petition contained a
complete description of the inconsistent decisions of which they
complained. The company submitted a sample that had been tested by the
CBP laboratories. Yara requested that CBP classify the imported
merchandise under subheading 3102.60.00, HTSUS.
Notice of the petition, along with a request for comments, was
published in the Federal Register (76 FR 48875) on August 9, 2011. No
comments were received in response to the notice. This document informs
all interested parties of CBP's decision regarding the issue raised in
the petition.
II. Decision
The subject merchandise is a hydrated ammonium calcium nitrate
double salt that is used as a fertilizer. While it can also be used for
water treatment, its primary use is as a fertilizer and its chemical
structure is identical for both uses. As a result, it is described by
the terms of heading 3102, HTSUS, as a nitrogenous mineral fertilizer.
Furthermore, Legal Note 2 to Chapter 31, HTSUS, specifically lists
this merchandise: double salts, whether or not pure, or mixtures of
calcium nitrate and ammonium nitrate. In addition, Explanatory Note
(EN) 31.02 confirms this interpretation. The subject merchandise is a
fertilizer with a secondary use in waste water treatment. This
alternate function is explicitly allowed by EN 31.02.
The Port of Baltimore liquidated the subject merchandise under
heading 2842, HTSUS. Legal Note 5 to Chapter 28, HTSUS, directs
classification of double or complex salts into heading 2842, HTSUS,
``except where the context otherwise requires.'' There is no dispute
that the subject merchandise is a double salt, but the context here
requires that it be classified outside heading 2842, HTSUS. In this
case, the subject merchandise is specifically described by Legal Note 2
to heading 3102, HTSUS, as being classified in that heading. The
subject merchandise is also described, eo nomine, by the terms of
heading 3102, HTSUS, as a nitrogenous mineral fertilizer. As a result,
the context requires that it be classified there instead of heading
2842, HTSUS.
This notice informs all interested parties that in a decision dated
December 16, 2011, CBP classified the subject CN-9 Solution under
subheading 3102.60.00, HTSUS, which provides for: ``Mineral or chemical
fertilizers, nitrogenous: Double salts and mixtures of calcium nitrate
and ammonium nitrate.'' In accordance with 19 CFR 177.13(e), the
decision was effective immediately upon issuance and, where applicable,
applies to all entries for which liquidation is not final.
III. Authority
This notice is published in accordance with section 177.13(d), CBP
Regulations (19 CFR 177.13(d)).
Dated: December 27, 2011.
Sandra L. Bell,
Executive Director, Regulations and Rulings, Office of International
Trade.
[FR Doc. 2011-33603 Filed 12-29-11; 8:45 am]
BILLING CODE 9111-14-P