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HQ 966456

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October 25, 2004

CLA-2 RR:CR:GC 966456 MG

CATEGORY: CLASSIFICATION

TARIFF NO.: 2309.90.9500

Port Director
Customs and Border Protection
Champlain, NY 12919

RE: Protest number 0712-02-100197; Tetracid 500TM

Dear Port Director:

This constitutes our decision on Protest number 0712-02-100197, filed against your classification under the Harmonized Tariff Schedule of the United States (HTSUS) of Tetracid 500TM (“Tetracid”) imported by Jefo Nutrition, Inc. The entry was liquidated on August 9, 2002, and the protest was timely filed on November 4, 2002.

FACTS:

As stated in the product literature, Tetracid is a protected acidifier that is added to swine feed. It is a combination of organic and inorganic acids that are coated and protected by a matrix of organic and inorganic fatty acids that play an integral role in the development of the piglet’s digestive system. According to the literature, “Microencapsulation delivers the acids into the intestine without dissociation and permits them to work on microorganisms to modulate intestinal flora.” This product is comprised of 50 percent fatty acid matrix, 20 percent fumaric acid, 10 percent citric acid, 10 percent DL-malic acid, and 10 percent orthophosphoric acid.

In describing the functionality of the product, the literature notes that the organic acids that comprise Tetracid are coated and protected by a matrix of fatty acids. In this regard, the literature states that Tetracid does not affect the cells of the stomach wall and acidifies without reducing the normal production of hydrochloric acid. Tetracid works slowly and progressively in the stomach (where 30 percent of the acids are liberated) and more predominantly in the intestine under the action of pancreatic lipase and biliary salts (where 70 percent of the acids are liberated). By enabling a substantial decrease of pH, Tetracid maintains an unfavorable medium for the growth of pathogenic bacteria while favoring the growth of lactic bacteria. The acidification further increases the hydrolysis of the feed proteins.

Tetracid was entered under subheading 2309.90.1050, HTSUS, which provides for: “Preparations of a kind used in animal feeding: Other: Mixed feeds or mixed feed ingredients: Other.” The entry was subsequently reclassified by Customs in subheading 3824.90.9150, HTSUS (2002), which provides for: “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: Other: Other: Other: Other: Other: Other.” The successor tariff code in HTSUS (2004) is subheading 3824.90.9190. Protestant claims that Tetracid is properly classified in subheading 2309.90.1050, HTSUS, the provision for preparations of a kind used in animal feeding.

ISSUE:

Is Tetracid classified as a preparation of a kind used in animal feeding or as a prepared binder or mixture preparation used for foundry molds or cores?

LAW AND ANALYSIS:

At the outset, it is noted that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; (see 19 U.S.C.§1514(c)(3)(A)) and the matters protested are protestable (see 19 U.S.C. §1514(a)(2) and (5)).

Merchandise imported into the U.S. is classified under the HTSUS. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 1 through 5.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN’s) represent the official interpretation of the Harmonized System at the international level and facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs. The ENs, although not dispositive nor 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 provisions under consideration are as follows:

2309 Preparations of a kind used in animal feeding:

2309.90 Other:

2309.90.10 Mixed feeds or mixed feed ingredients

Other:

Other:

Other:

2309.90.9500 Other.

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:

3824.90 Other:

Other:

Other:

Other:

Other:

3824.90.9150 Other.

GRI 1 provides that articles are to be classified by the terms of the headings and relative Section and Chapter Notes. For an article to be classified in a particular heading, the heading must describe the article, and not be excluded therefrom by any legal note.

Because Tetracid is a chemical product put up for use as an acidifier in animal feeds, both headings are applicable. However, because heading 2309, HTSUS, provides a more specific description comprising a narrower range of products based on the use of such goods in animal feed stuffs, classification of Tetracid should fall under that heading. If not classifiable in heading 2309, HTSUS, it would then be classified in heading 3824, HTSUS.

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.

The EN to heading 2309, at (A)(3) describes other preparations in terms of their functions. These types of preparations are described, on page 201 of the EN, as follows:

PREPARATIONS DESIGNED TO PROVIDE THE ANIMAL WITH ALL THE NUTRIENT ELEMENTS REQUIRED TO ENSURE A RATIONAL AND BALANCED DAILY DIET (COMPLETE FEEDS)

(3) “Function” nutrients. These are substances which promote the assimilation of carbohydrates, proteins and minerals. They include vitamins, trace elements and antibiotics. Lack or deficiency of these nutrients usually causes disorders.

In order to be classified in heading 2309, preparations designed to improve digestion, to preserve feeding stuffs or to perform as carriers for other ingredients must contain, as part of the preparation, at least three (i.e., “several”) nutrient ingredients. We have consistently followed this rationale when including or excluding preparations from classification in heading 2309. See HQ 964600, dated June 21, 2001, where we denied classification of a BHA in heading 2309, HTSUS. BHA consisted of seventy-five percent by weight of the preservative, BHA, fifteen percent of Sipernat and ten percent Silica Flour, and was used as a preservative in animal feed.

This reconsideration request was predicated on the argument that the EN to heading 2309, at (II)(C)(2) allows preparations, such as anti-oxidants, designed to preserve the feeding stuffs, to be included in classification under heading 2309, HTSUS. We concluded that the cited EN must be read in the context of both the entire EN and the whole of subpart (II)(C). We further stated that the first paragraph of the EN clearly defines the scope of the heading as those preparations consisting of a mixture of several nutrients and concluded that BHA-75 has no nutritive value. Therefore, although BHA-75 was used as an animal feed ingredient, it did not qualify as a feedstuff, as required for classification under the terms of the heading.

Similarly, in HQ 964944, dated February 8, 2002, we held that although Mater-Bi starch pellets were principally used to fabricate dog chew bones, they were not considered feed preparations under heading 2309, HTSUS, because they were not a mixture of nutrients. We further concluded that because only one of the ingredients in the pellets (i.e., corn starch) had nutritive value, the pellets were not considered a mixture of nutrients as required by heading 2309, HTSUS.

In HQ 966679, dated September 15, 2003, and HQ 966203, dated September 15, 2003, we classified Met-Plus, a rumen protected methionine additive, in heading 2309, HTSUS. Here, we followed the rationale of HQ 964600 and concluded that because Met-Plus consisted of a mixture of several nutrients that assist the process of digestion, it met the terms of heading 2309, HTSUS.

Tetracid, is a preparation designed for use in piglet feed. It consists of a mixture of four organic and inorganic acids that have been encapsulated by microgranules of fatty acids, which slow the release of the acids in the intestinal tract. By lowering the pH in the intestine, Tetracid is said to prevent the growth of undesirable bacterial organisms and improve the piglets’ ability to digest the nutrients in the feed. The composition of the product is said to be 50 percent of organic and inorganic acids (functional ingredients) and 50 percent fatty acids (encapsulating the acids). Although the organic and inorganic acids are not nutrients, the fatty acids may have nutrient value.

The term “nutrient,” as defined in various dictionary sources is, in essence, a substance that can be metabolized by an organism and, thus metabolized, provides the building blocks for the organism to grow and repair itself. This meaning is reflected in the various definitions we found for this word. For example,

The Online Biology Dictionary:

“Any substance of nutritional value to an organism, i.e., it provides the building blocks for the organism to grow and repair itself.

The Online English Dictionary defines the term as:

“Any substance that can be metabolized by an organism to give energy and build tissue.”

The Online Medical Dictionary:

“Nourishing, affording nutriment.
“A nutritious substance, food or a component of food.”

In the same source, the word, nutriment, was defined as:

“That which nourishes; anything which promotes growth and repairs the natural wastes of animal or vegetable life; food; aliment. “That which promote development or growth.”

Webster’s New World College Dictionary:

“A nutritious ingredient or substance in a food.”

Webster’s Revised Unabridged Dictionary:
adj. “Nutritious; nourishing; promoting growth. n.: “Any substance which has nutritious qualities, i.e., which nourishes or promotes growth.”

Based on these definitions, a nutrient is a food substance that is utilized or consumed by the body to create tissue or energy. Unlike nutrient substances, such as amino acids and other protein-containing substances, carbohydrates, minerals, vitamins, water, etc., substances such as the organic and inorganic acids which make up the functional ingredient in Tetracid are not converted to tissue or energy by the body. However, because they promote a more efficient metabolism, the ingredients in Tetracid are considered function nutrients, as described by EN 23.09 (II)(A), and is classified under heading 2309, HTSUS.

In describing the use of the product, the product literature describes the function of Tetracid as an acidifying additive for buffered feeds. By lowering the pH of the feed in the stomach of the animal, the product supports the normal hydrolysis of proteins in the feed. This allows normal digestion of the feed and prevents the loss of undigested protein. This protein would not only be lost as waste but, before excretion by the piglet, would also serve as growth medium for pathogenic and putrefactive bacteria, causing diarrhea and retarding growth.

It is apparent that Tetracid is a product designed for use as an animal feed ingredient. And based on the above description, Tetracid acts as a functional nutrient to ensure the more complete digestion. By creating a favorable acid condition in the stomach and intestines of animals, the acid components of this product promote and enhance the organism’s absorption of the protein necessary to support growth. By supporting a more complete digestion of the feed ration, the Tetracid product also indirectly promotes the health and safety of the animal by reducing the potential substrate, which might support the growth of bacterial pathogens.

Based on the above analysis, we believe that Tetracid is considered for tariff purposes a preparation of a kind used in animal feeding classified in subheading 2309.90.9500, HTSUS, which provides for: “Preparations of a kind used in animal feeding: Other: Other: Other: Other: Other.”

HOLDING:

Tetracid is classified in subheading 2309.90.9500, HTSUS, which provides for: “Preparations of a kind used in animal feeding: Other: Other: Other: Other: Other.”

Since reclassification of the merchandise in accordance with this decision will result in a partial refund of duties, Protest number 0712-02-100197 should be DENIED.

Articles classified under this tariff provision have a column one, general rate of duty of 1.4 percent ad valorem. Duty rates are provided for the protestant’s convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the Internet at www.usitc.gov.

In accordance with the “Protest/Petition Processing Handbook” (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision.

Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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See also:

• Tariff No.: 2309.90.10 - Mixed feed or mixed feed ingredients used in animal feeding
• Tariff No.: 2309.90.95 - Other preps nes of a kind used in animal feeding, not cont milk or egg prods
• Tariff No.: 3824.90.91 - Chemical products, preparations, and residual products of the chemical or allied products industries, nesoi