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HQ 953379




September 3, 1993

CLA-2 CO:R:C:F 953379 EAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 2909.50. 4050

District Director
U. S. Customs Service
P.O. Box 37260
Milwaukee, Wisconsin 53237-0260

RE: Application for Further Review of Protest No. 3701-92-100071, dated September 21, 1992, concerning 4-hydroxy-3-methoxybenzyl alcohol; CAS 498-00-0 not listed; vanillyl alcohol; buying commission; IA 64/91; HQ 544894

Dear Sir:

This is a decision on a protest filed September 21, 1992, against your decision in the classification of merchandise liquidated on July 17, 1992 and entered on December 16, 1991.

You also ask whether payments made by the importer to three overseas affiliates are non-dutiable buying commissions. In response to this, Customs has issued IA 64/91, HQ 554894 (May 4, 1992 ), holding such payments to be buying commissions and, therefore, not subject to duty.

FACTS:

The protestant entered all goods in subheading 2909.50.4050, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), a provision for ether-phenols or ether-alcohol-phenols, odoriferous or flavoring compounds, dutiable at the column I general rate of 4.8 percent ad valorem.

Customs reclassified the merchandise under subheading 2909.50.4500, HTSUSA, a provision for other products described in additional U.S. note 3 to section VI of the Schedule, dutiable at the column 1 general rate of 13.5 percent ad valorem.

Protestant seeks reclassification of the goods to subheading 2909.50.4050, HTSUSA.

Assigned CAS No. 498-00-0, a number not listed in the Chemical Appendix to the Tariff Schedule, the merchandise is an organic chemical compound commonly known as vanillyl alcohol, the chemical name of which is 4-hydroxy-3-methoxybenzyl alcohol.

Technical literature indicates that the compound is a reaction product of vanillin, the latter substance having odoriferous and/or flavoring signatures much stronger than the former, such that vanillyl alcohol is considered, if not actually, then virtually, obsolete for such purposes.

ISSUE:

Whether vanillyl alcohol, 4-hydroxy-3-methoxybenzyl alcohol, CAS No. 498-00-0, a number not listed in the Chemical Appendix to the Tariff Schedule, is classifiable under subheading 2909.50.4050, HTSUSA, or under subheading 2909.50.4500, HTSUSA?

LAW AND ANALYSIS:

Merchandise imported into the U.S. is classified under the HTSUSA. Tariff classification 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.

We are unaware of authority that makes obsolescence a determinant of classification. While that which is "obsolete" is that which is no longer in use or no longer useful, Webster's Ninth New Collegiate Dictionary, Merriam-Webster, Inc., (1986), 816, and the controlling use is the principal use, see Additional U.S. Rule of Interpretation l(a), the "controlling use" is not the use a la mode. Our focus must not be whether a product is frequently used, but whether the principal use of the product is in the manner claimed. Little meaningful issue could be taken with the statement that in modern U.S. classrooms a slide rule or abacus is an obsolete device; however, they would be classified as mathematical calculating instruments under subheading 9017.20.40, HTSUSA.

We are of the opinion that vanillyl alcohol is described by subheading 2909.50.4050, HTSUSA, and is classifiable thereunder.

HOLDING:

The protest should be allowed.

The compound vanillyl alcohol, 4-hydroxy-3-methoxybenzyl alcohol, CAS No. 498-00-0, a number not listed in the Chemical Appendix to the Tariff Schedule, is classifiable under subheading 2909.50.4050, HTSUSA.

Merchandise entered in 1991 under the foregoing subheading was subject to the column 1 general rate of duty of 4.8 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
Commercial Rulings Division


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