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