HQ 0089253 - Application for Further Review of Protest No. 3501-1- 000023, dated April 30, 1991, concerning a dry mixture in equal parts of choline chloride powder and silicon dioxide; choline chloride 50 percent powder; HRL 085525 - United States International Trade Commision Rulings

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HQ 089253

November 18, 1991

CLA-2 CO:R:C:F 089253 EAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 3823.90.5050

District Director
U.S. Customs Service
110 S. Fourth Street
Minneapolis, Minnesota 55401

RE: Application for Further Review of Protest No. 3501-1- 000023, dated April 30, 1991, concerning a dry mixture in equal parts of choline chloride powder and silicon dioxide; choline chloride 50 percent powder; HRL 085525

Dear Sir:

This is a decision on a protest filed April 30, 1991, against your decision in the classification of the merchandise in entry number 0008912, liquidated January 4, 1991.

FACTS:

The protestant entered the goods under subheading 3003.90.0000, Harmonized Tariff Schedule of the Unites States Annotated (HTSUSA), the provision for medicaments consisting of two or more constituents which have been mixed together for therapeutic or prophylactic uses, dutiable at 6 percent ad valorem. The protestant now claims that the proper classification is under subheading 2309.90.1050, HTSUSA, a provision for preparations of a kind used in animal feeding, other, other, to be entered free of duty. The goods were reclassified to 3823.90.5050, a provision for chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included, other, other, other, other, other and the rate was adjusted to 5 percent ad valorem.

Neither a sample nor a laboratory analysis of the goods has been submitted. The protestant states that the goods are an equal mixture of choline chloride powder and silicon dioxide and admits that the product does not contain 6 percent by weight of grain.

ISSUE:

What is the proper classification under the HTSUSA of a dry mixture of 50 percent choline chloride powder and 50 percent silicon dioxide?

LAW AND ANALYSIS:

Merchandise imported into the U.S. is classified under the HTSUSA. The tariff classification of merchandise under the HTSUSA is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUSA and are to be considered statutory provisions of law for all purposes.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's taken in order.

Additional U.S. Note 1, Chapter 23, HTSUSA, requires that mixed feeds and mixed-feed ingredients must contain not less than 6 percent by weight of grain or grain products in order to be classified under subheading 2309.90.10, HTSUSA. Since the subject goods do not contain at least 6 percent by weight of grain or grain products, they cannot be classified under the foregoing subheading.

In HRL 085525 (December 6, 1989), Customs classified choline chloride 50 percent powder, a mixture of choline chloride powder (50 percent), colloidal silicic acid (35 percent) and water (15 percent) under subheading 3823.90.5050. We note that the product therein does differ from the goods at issue here. We are of the opinion that the 50 percent by weight of choline chloride powder and the lack of grain or grain products in that case are too similar to the facts in this case to ignore. We believe that the subject goods are sufficiently similar to the goods in HRL 085525 to classify the subject goods under subheading 3823.90.5050, HTSUSA.

Based upon Additional U.S. Note 1, Chapter 23, HTSUSA and consistent with HRL 085525, supra, we find the subject goods properly classified under subheading 3823.90.5050, HTSUSA, dutiable in 1990 at the general rate of 5 percent ad valorem.

Since the rate of duty under the classification indicated above is the same as the liquidated rate, you are instructed to deny the protest in full.

HOLDING:

A dry mixture of 50 percent by weight of choline chloride powder with 50 percent by weight of silicon dioxide, not containing at least 6 percent by weight of grain or grain products, is properly classified under subheading 3823.90.5050, HTSUSA, which provides for chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included, other, other, other. Merchandise classified under this subheading in 1990 was subject to the general rate of duty of 5 percent ad valorem.

A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the Notice of Action on the protest.

Sincerely,

John Durant, Director

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