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HQ 087627


August 3, 1990
CLA-2 CO:R:C:G 087627 SLR

CATEGORY: CLASSIFICATION

TARIFF NO.: 2309.10.0010; 9903.23.35

Jane Bicks, D.V.M.
Educational Director
Fauna Foods Corporation
46-09 11th Street
Long Island City, NY 11101

RE: Modification of HRL 086640 dated June 12, 1990; Dog Snack From West Germany

Dear Dr. Bicks:

On June 12, 1990, this office issued Headquarters Ruling Letter (HRL) 086640 classifying the "Happy Dog" dog treat as a dog food, put up for retail sale, in an airtight container in subheading 2309.10.0010, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We also determined that subheading 9903.23.35, HTSUSA, which applies a 100 percent duty to certain pet foods originating from the EEC, did not apply to the subject dog treat. We have found the latter conclusion to be in error.

The product at issue, the "Happy Dog" dog snack is a high energy meat flavored treat, made with vegetable grain products and packed in 30 gram size airtight, cellophane packs. The given ingredients are: wheat flakes, corn flakes, meat meal, raisins, extruded corn and dextrose syrup, with the possibility that a vitamin/mineral mix will be added.

Subheading 9903.23.35, HTSUSA, indicates that pet food packaged for retail sale, of byproducts obtained from the milling of grains, mixed feeds, and mixed-feed ingredients (provided for in 2309.10) which are products of the European Economic Community (EEC) are subject to a 100 percent duty rate. Additional U.S. Note 1 to Chapter 23 indicates that:

The term "mixed feed and mixed-feed ingredients" in subheading 2309.90.10, HTSUSA, embraces products of heading 2309 which are admixtures of grains (or products, including byproducts, obtained in the milling of grains) with molasses, oilcake, oil-cake meal or feedstuffs, and which consist of not less than 6 percent by weight of grain or grain products.

While the language of the additional note refers to subheading 2309.90.10, HTSUSA, the note, nonetheless, lends guidance in understanding the phrase "mixed feed and mixed-feed ingredients" when it is used in conjunction with subheading 2309.10.

Here, the subject dog treat is not made of byproducts obtained from the milling of grains; however, it is made from mixed-feed ingredients -- the product is an admixture of grains combined with a feedstuff (meat meal) which consists of over 6 percent by weight of grain. Accordingly, the "Happy Dog" dog treat, a product made of mixed-feed ingredients classifiable in subheading 2309.10, HTSUSA, as a pet food put up for retail sale, is subject to the 100 percent duty rate dictated by subheading 9903.23.35, HTSUSA.

HRL 086640 is hereby modified pursuant to 19 CFR 177.9(d). This modification is effective immediately; however, it shall not be applied retroactively to the classification of goods entered by you or on your behalf in reliance of HRL 086640.

Sincerely,

John Durant, Director
Commercial Rulings Division

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