HQ 0083649 - Classification of a "Milky Dog Bone" - United States International Trade Commision Rulings

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HQ 083649

December 19, 1989

CLA-2 CO:R:C:G 083649 WAW

CATEGORY: CLASSIFICATION

TARIFF NO.: 2309.90.3000

Mr. W.M. Neubauer
Lex-Pet
3003 G Park Central Avenue
Nicholasville, KY 40356

RE: Classification of a "Milky Dog Bone"

Dear Mr. Neubauer:

This ruling is in response to your letter of March 20, 1989, on behalf of Sunrise Corporation, requesting the classification of a "Milky Dog Bone" under the Harmonized Tariff Schedule of the United States Annotated (hereinafter HTSUSA).

FACTS:

The subject merchandise is a hardened milk dog bone. The bone consists of the following ingredients:
lactic casein: 80% edible gelatin: 20% protein: more than 64% fat: more than 1% ash: less than 17% moisture: less than 13% fiber: 0%

The bone is primarily made of milk and is 100% digestible by a dog. It is high in protein and vitamin E enriched. It is available in assorted sizes and shapes and comes in both hard and soft styles. This item will be imported from Japan.

ISSUE:

What is the proper classification of a "Milky Dog Bone" under the Harmonized Tariff Schedule of the United States?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the manner in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's, taken in order.

Heading 2309 provides the most specific description of the merchandise in question. This heading covers "preparations of a kind used in animal feeding: dog or cat food, put up for retail sale." Since the subject merchandise is a hardened bone made of milk intended to be given to dogs as a snack, it is properly classifiable under this heading. Accordingly, once the item is classified under a particular heading, determination of the particular subheading is controlled by the composition of the good in question. Classification of the dog bone falls under subheading 2309.90.3000, HTSUSA, covering "other: animal feeds containing milk or milk derivatives," because it clearly is not covered by the preceding subheading which covers "mixed feeds or mixed feed ingredients."

Moreover, the Legal Note to Chapter 23 provides the following:

"Heading 2309 includes products of a kind used in animal feeding, not elsewhere specified or included, obtained by processing vegetable or animal materials to such an extent that they have lost the essential characteristics of the original material, other than vegetable waste, vegetable residues and byproducts of such processing."

In the instant case, it is apparent that the milk which is the primary ingredient in the dog bone, has been processed to such an extent that it has lost the essential character of milk in its natural form. In addition, although these bones may be used to exercise a dog's jaws and to clean tartar from a dog's teeth, they also provide a nutritional supplement for the dog. Thus, based on the foregoing analysis, it is Customs position that classification of the milk dog bones in this case is proper under subheading 2309.90.3000, HTSUSA, which provides for "preparations of a kind used in animal feeding: other: animal feeds containing milk or milk derivatives."

HOLDING:

The milk dog bone at issue is classifiable under the provision for preparations of a kind used in animal feeding in subheading 2309.90.3000, HTSUSA, dutiable at 7.5 percent ad valorem.

Sincerely,

John Durant, Director

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