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NY I83524

July 31, 2002

CLA-2-38:RR:NC:2:231 I83524


TARIFF NO.: 3824.90.2800

Mr. John Peterson, Esq.
Neville, Peterson LLP
80 Broad Street, 34th Floor
New York, NY 10004

RE: The tariff classification of a methionine based mixture from Japan.

Dear Mr. Peterson:

In your letter, dated July 2, 2002, you requested a tariff classification ruling on behalf of your client, BioZyme, Inc., St. Joseph, MO.

The merchandise, “Met-Plus,” is a methionine based mixture in the form of a fine, granular material. The product is a mixture of DL-methionine (C5H11NO2S), calcium salts of long-chain fatty acids, lauric acid, and the preservative BHT. The methionine accounts for 65 percent of the product’s total content, by weight. “Met-Plus” will be used as supplementary cattle feed.

In your correspondence you note that the classification of this product was the subject of an earlier ruling request (i.e., NYRL H86670, dated March 18, 2002), filed on behalf of Nisso America, Inc. Your state that your client, BioZyme, Inc., who is now responsible for the importation of this product, disagrees with the classification in the New York ruling letter and wishes to have that ruling reconsidered. Since your client was not the party to whom the ruling was issued, we cannot accept your letter as a request for reconsideration. Further, your letter states that the issued posed by this request have not previously been decided by the Customs Service. We disagree.

Briefly, you state that this DL-Methionine is used only as an animal feed supplement, that it is within the ambit of the Explanatory Notes (EN) to heading 23.09 and that, therefore, the product is not classifiable in heading 38.24, as a preparation of the chemical or allied industries, nesoi.

First, we would point out that not all substances, which may be used in, or added to, animal feeding preparations, are classifiable in heading 23.09. In fact, the first paragraph of the EN defines the scope of the entire heading, the balance of the note being read in the context of these initial provision. parameters. Thus, the EN state that “This heading covers sweetened forage and prepared animal feeding stuffs consisting of a mixture of several nutrients designed: (1) 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”. [Bold-face added for emphasis.] Thus, NYRL 807746, March 13, 1995, classified the compound DL-Methionine (CAS No. 59-51-8), which was used as an ingredient in pet food, as an organic compound in heading 29.30, HTSUS. In HQRL 089931, October 15, 1991, Customs classified certain rawhide dog chews, “coated with a beef flavoring, dried and packaged,” although principally eaten by dogs, but consisting only one component (namely, of flavored proteinaceous hide strips), in heading 05.11, HTSUS, as Animal products not elsewhere specified or included; dead animals of chapter 1 or 3, unfit for human consumption. In contrast, Methionine, when imported in a mixture of several nutrient ingredients as a preparation for use in animal feeding, has been classified in heading 23.09, HTSUS. See, for example, HQRLs 957213, January 4, 1995, and 953755, September 3, 1993, and NYRL D82484, October 2, 1998. Accordingly, the fact that the instant product has a use as a feedstuff additive, described in items (1), (2) or (3) of the referenced EN, above, or in one of the subsections thereunder, is not determinative of its classification in heading 23.09. In a ruling dated June 21, 2001, Headquarters addressed a similar situation in classifying a product called BHA-75, a preservative used in animal feed. The inquired contended that the product was described in the EN to heading 23.09, based on its use as a preservative additive. In ruling, HQs responded to that claim, as follows: “You argue that EN 23.09(II)(C)(2) allow preparations, such as antioxidants, 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 preparation which consist of a mixture of several nutrients. (emphasis added). It is undisputed that BHA-75 has no nutritive value.”

Based on the foregoing, we would conclude that a preparation of DL-Methionine, mixed with functional ingredients, such as calcium salts of long-chain fatty acids and lauric acid, and the preservative BHT, are not preparations of a kind used in animal feeding, as provided for in heading 23.09, HTSUS.

Accordingly, the applicable subheading for “Met-Plus” will be 3824.90.2800, Harmonized Tariff Schedule of the United States (HTS), 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; residual products of the chemical or allied industries, not elsewhere specified or included: mixtures containing 5 percent or more by weight of one or more aromatic or modified aromatic substances: other. The rate of duty will be 0.7 cents per kilogram plus 7.9 percent ad valorem.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Thomas Brady at (646) 733-3030.


Robert B. Swierupski

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