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HQ 964600




June 21, 2001

CLA-2 RR:CR:GC 964600 AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 3824.90.28

Mr. Richard A. Rocco
Livingston International Inc.
27215 Northline Rd.
Taylor, MI 48180

RE: New York ruling letter E81725; BHA

Dear Mr. Rocco:

This is our decision regarding your letter, dated May 31, 2000, addressed to the Director, National Commodity Specialist Division, requesting reconsideration of New York Ruling Letter (NY) E81725, dated September 14, 1999, regarding the tariff classification, pursuant to the Harmonized Tariff Schedule of the United States (HTSUS), of butylated hydroxyanisole (BHA-75). Your letter was forwarded to this office for reply. We regret the delay.

FACTS:

The product at issue is a white, powdered mixture that consists by weight of seventy five percent BHA, fifteen percent Sipernat and ten percent Silica Flour used to improve flow and act as anti-caking agents. The product is used as a preservative in animal feed.

In NY E81725, the merchandise was classified in subheading 3824.90.28, HTSUS, which provides for "[P]repared 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: [O]ther: [O]ther."

ISSUE:

What is the correct classification of BHA-75?

LAW AND ANALYSIS:

Merchandise imported into the United States is classified under the HTSUS. 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 requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS 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 GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs. In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The HTSUS headings under consideration are as follows:

Preparations of a kind used in animal feeding:

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:

The ENs to heading 23.09, HTSUS, state, in pertinent part, as follows:

This heading covers sweetened forage and prepared animal feeding stuffs consisting of a mixture of several nutrients designed :
to provide the animal with a rational and balanced daily diet (complete feed);

(2) to achieve a suitable daily diet by supplementing the basic farm-produced feed with organic or inorganic substances (supplementary feed); or

(3) for use in making complete or supplementary feeds.

(C) PREPARATIONS FOR USE IN MAKING THE COMPLETE FEEDS OR SUPPLEMENTARY FEEDS DESCRIBED IN (A) AND (B) ABOVE

These preparations, known in trade as “ premixes”, are, generally speaking, compound compositions consisting of a number of substances (sometimes called additives) the nature and proportions of which vary according to the animal production required. These substances are of three types:

(1) Those which improve digestion and, more generally, ensure that the animal makes good use of the feeds and safeguard its health: vitamins or provitamins, amino-acids, antibiotics, coccidiostats, trace elements, emulsifiers, flavourings and appetisers, etc.

(2) Those designed to preserve the feeding stuffs (particularly the fatty components) until consumption by the animal : stabilisers, anti-oxidants, etc.

(3) Those which serve as carriers and which may consist either of one or more organic nutritive substances (manioc or soya flour or meal, middlings, yeast, various residues of the food industries, etc.) or of inorganic substances (e.g., magnesite, chalk, kaolin, salt, phosphates).

The concentration of the substances described in (1) above and the nature of the carrier are determined so as to ensure, in particular, homogeneous dispersion and mixing of these substances in the compound feeds to which the preparations are added.

You argue that EN 23.09 (II)(C)(2) allows preparations, such as anti-oxidants, designed to preserve the feeding stuffs, to be included in classification under heading 2309, HTSUS. A close reading of the entire EN proves this argument incorrect.

EN 23.09 (II)(C)(2) must be read in the context of both the entire EN and the whole of subpart (II)(C). The first paragraph of the EN clearly defines the scope of the heading as those preparations which consist of a mixture of several nutrients. (emphasis added). It is undisputed that BHA-75 has no nutritive value.

Furthermore, EN 23.09 (II)(C) describes preparations consisting of a number of substances. The substances in the preparation are of three types: digestion aids, preservatives, and carriers. BHA-75 is simply a mixture of preservatives and anti-caking agents only and hence, is not a preparation of the kind described by EN 23.09 (II)(C). Such preparations have nutritive value.

HQ 962012, which classifies a mixture of amino acids used as nutritional supplements for horses in heading 2309, HTSUS, has no bearing on this matter. There the mixture consisted of nutritional ingredients, namely amino acids or proteins. BHA-75 does not consist of any nutritional ingredients.

We agree that the language "of a kind" in a heading indicates a principal use provision. "A tariff classification controlled by use is determined in accordance with the principal use of the class or kind of goods to which the imported goods belong. HTSUS Additional U.S. Rules of Interpretation 1(a). . . . The court stresses that it is the principal use of the class or kind of goods to which the imports belong and not the principal use of the specific imports that is controlling under the Rules of Interpretation." Group Italglass U.S.A., v. United States, 17 C.I.T. 1177, 839 F. Supp. 866, 868, 1993.

BHA-75 belongs to the class or kind of goods known as preservatives, or anti-oxidants. This class or kind of goods has a wide variety of uses in foods other than animal feeds. Therefore, a mixture of preservatives and anti-caking agents, is classified as a chemical mixture, rather than as a "preparation of the kind used in animal feeds," even if the specific import is used in animal feed.

HOLDING:

At GRI 1, the product is classified in subheading 3824.90.28, HTSUS, the provision for "[P]repared 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: [O]ther: [O]ther." NY E81725 is affirmed.

Sincerely,

John Durant, Director
Commercial Rulings Division

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