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HQ 087827


November 30, 1990

CLA-2 CO:R:C:G 087827 RFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 2309.90.10

Mr. William J. LeClair
Trans-Border Customs Services, Inc.
One Trans-Border Drive
P.O. Box 800
Champlain, New York 12919

RE: Animal feed preparations

Dear Mr. LeClair:

This ruling letter is in response to your request of August 2, 1990, on behalf of Miracle Feeds, concerning the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of certain animal feed preparations. The goods will be imported from Canada.

FACTS:

The product is identified as "Miracle Mira 10 Maltlage." It is a preparation for use in the feeding of pigs and dairy animals. The product contains over 60 percent whey DPR25 by weight and a proprietary combination of brewers dry grain, soya meal 40, rolled barley, wheat millrun and canola meal 34 in proportions such that the product contains not less than 6 percent by weight of grain or grain products.

ISSUE:

What is the proper classification under the HTSUSA of a preparation for use in the feeding of pigs and dairy animals that contains over 60 percent whey DPR25, a combination of grains not less than 6 percent by weight, and soya meal?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRIs). 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, then according to the remaining GRIs, taken in order.

A review of the chapters in the HTSUSA reveals that the instant goods may be potentially classified in chapter 4 and chapter 23. Chapter 4 covers, among other things, dairy products and edible products of animal origin not elsewhere specified or included in the schedule. In this chapter, the goods may be potentially classified under heading 0404. This heading essentially provides for whey and products consisting of natural milk constituents that may contain sugar or other sweetening matter and that are not elsewhere specified or included in the schedule. Given its non-sugar, multi-ingredients, the instant product does not fit this article description. Accordingly, the instant product is not properly classified under heading 0404.

The other chapter in which the instant product may be potentially classified is chapter 23. This chapter covers, among other things, prepared animal feeds. Within chapter 23, heading 2309 provides for preparations of a kind used in animal feeding. Chapter note 1 to chapter 23 states that "[h]eading 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." Under heading 2309, then, are classified preparations consisting of processed vegetable or animal materials for use as animal feed.

Within heading 2304, subheading 2309.90.10 provides for mixed feeds or mixed feed ingredients. Additional U.S. note 1 to chapter 23 states that "[t]he term `mixed feeds and mixed-feed ingredients' in subheading 2309.90.10 embraces products of heading 2309 which are admixtures of grains (or products, including byproducts, obtained in milling 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." Given the parameters set forth in this note, to be classified under subheading 2309.90.10, a preparation of a kind used in animal feeding must contain admixtures of grains and not be less than 6 percent by weight of grains or grains products and must also contain molasses, oilcake, oil-cake meal or feedstuffs. The language of this note does not prelude the classification of a preparation meeting the description of a "mixed feed or mixed- feed ingredients" while also containing an additional ingredient (e.g., whey). In the instant case, the product is an admixture of grains and contains over 6 percent by weight of grain or grain products. It also contains "feedstuffs" in the form of soya meal. Accordingly, the instant product is embraced by the terms of subheading 2309.90.10, and thus should be classified under this subheading.

HOLDING:

The above-identified product is properly classified under subheading 2309.90.10, HTSUSA, which provides for preparations of a kind used in animal feeding, other, mixed feeds or mixed-feed ingredients. Goods classified under this subheading and qualifying for a general rate of duty may enter free of duty.

Sincerely,

John Durant, Director
Commercial Rulings Division

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