CLA-2:CO:R:C:G 086477 SER
Jack D. Mlawski, Esquire
Galvin, Fox & Palmer
425 Park Avenue
New York, NY 10022-3506
Re: Efrotomycin granules
Dear Mr. Mlawski:
This is in reference to your request, on behalf of Merck &
Co., Inc., for classification under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) of Efrotomycin
granules from Holland.
FACTS:
The merchandise at issue is an antibiotic which consists of
20% Efrotomycin granules which is sold to feed supplement
suppliers or utilized by the Merck & Co. solely for the
preparation of 3.2% pre-mix feed supplement. The imported 20%
Efrotomycin granules will consist of the following: 25% of the
imported granules will be comprised of 80% Efrotomycin; and the
remaining 75% will be attributable to the Magnesium Alginate.
The bulk Efrotomycin used in the production of the imported
20% Efrotomycin granules is manufactured domestically by Merck.
The domestically produced bulk Efrotomycin consists of an
unstabilized antibiotic mixture. The bulk Efrotomycin is
exported to a division of Merck in Holland for formulation into
the imported stabilized 20% Efrotomycin granule.
In Holland the bulk Efrotomycin is charged along with water,
thickeners, and stabilizers to a mixer yielding an Efrotomycin
magnesium alginate blend of proper consistency for extrusion.
The blend is thereafter transported via a turning feeder screw
through an extruder barrel fitted with a stainless steel dye of
appropriate size to produce continuous strands. The exudate is
passed through a mill to reduce the strands to short rods which
are dried to a pre-determined specification. Optimum particle
size is achieved through cracking the dried rods in a special
mill resulting in the imported 20% Efrotomycin granule.
-2-
ISSUE:
Whether the product is an antibiotic or an animal feed
preparation.
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI), taken in order. The
Harmonized System is a complete product classification system,
and the goal of the Harmonized System is to place all goods that
are imported into the specific classifications. In this context
the word "goods" is used in its broadest sense to include all
merchandise. The systematic detail is such that virtually all
goods are classifiable by application of GRI 1, that is,
according to the terms of the headings and any relative section
or chapter notes.
The primary function of this product is as an antibiotic
additive to feed mixes. One possible subheading in which the
product at issue, on its face, can be classified is Heading 2941,
HTSUS, which provides for antibiotics. The Explanatory Notes to
Heading 2941, HTSUSA, provide guidance for classification in this
Heading. The Explanatory Notes preclude classification of
products of "antibiotic preparations of a kind used in animal
feeding (i.e. dried and standardized complete mycelium [Heading
2309])." The product at issue, as indicated in the literature
provided with the classification request, is solely to be
utilized in feed preparations and, thus, would be precluded from
classification in Heading 2941, HTSUS.
Examination of Heading 2309, HTSUS, which provides for
preparations of a kind used in animal feeds, would indicate that
this is where the product at issue should be properly classified.
The Explanatory Notes under the provision for "other animal feed
preparations" indicate that these preparations, known in the
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,
etc.
2 - Those designed to preserve the feeding stuffs . . .
3 - Those which serve as carriers . . . .
-3-
The concentration of the substances described in
the 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:
Provided they are of a kind used in animal
feeding, this group also includes:
(a) preparations consisting of several mineral substances.
(b) products of the antibiotics manufacturing process
obtained by simply drying the mass, i.e. the entire
contents of the fermentation vessel (essentially
mycelium, the culture medium and the antibiotic). The
resulting dry substance, whether or not standardized by
adding organic or inorganic substances, has an
antibiotic content ranging generally between 8 percent
and 16 percent and is used as basic material in
preparing, in particular, "premixes".
This Heading provides the most specific description of the
product at issue. Though the Explanatory Notes dictate a range
of 8-16 percent on the antibiotic content of goods which are to
be classified in this Heading, and the product at issue has a
20-30 percent level; the range stated is qualified by the use of
the word "generally", which allows for some flexibility.
"Generally", as used in this section, is descriptive rather than
a limitation. Taking into consideration the fact that the
product is most specifically provided for in Heading 2309, HTSUS,
this is where the product is properly classified.
HOLDING:
The product at issue, Efrotomycin granules, an antibiotic
used in animal feed, is properly classified in subheading
2309.90.1050, HTSUSA, which provides for preparations of a kind
used in animal feeding: other: other. The rate of duty is free.
Sincerely,
John Durant, Director
Commercial Rulings Division