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NY 869664


December 19, 1991

CLA-2-04:S:N:N1:229-869664

CATEGORY: CLASSIFICATION

TARIFF NO.: 0408.99.0000

Mr. Patrick Zilverberg
North Central Trading Co.
601 Lakeshore Parkway, Suite 990
Minnetonka, MN 55343

RE: The tariff classification of frozen inedible EGGS, not in shell, from Canada.

Dear Mr. Zilverberg:

In your letter dated December 2, 1991, you requested a tariff classification ruling.

You describe this product as frozen inedible eggs, which will be imported from Canada either denatured or under U.S. Department of Agriculture seal. The product is intended for use in animal feed. You note that, while a classification provision exists for out of shell eggs, inedible eggs do not seem to be provided for in the tariff schedule. Hence, you are requesting "a special classification for inedible eggs for animal feed."

Merchandise imported into the United States is classified under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The tariff classification of merchandise under the HTSUSA 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 General Rules of Interpretation 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. In the instant case, we note that Heading 0408 provides for

"Birds' eggs, not in shell, and egg yolks, fresh, dried, cooked by steaming or by boiling in water, molded, frozen or otherwise preserved, whether or not containing added sugar or other sweetening matter".

The language of Heading 0408 provides, specifically, for birds' eggs, not in the shell, which are imported in a frozen condition. While the language of Heading 0408 does not, in itself, preclude the classification of inedible eggs within this provision, we would note the Explanatory Notes to this Heading for guidance regarding the scope of products covered therein.

The Explanatory Notes to the Harmonized System represent the official interpretation of the Customs Cooperation Council on the scope of each heading. See H.R. Conf. Rep. No. 100-576, 100th Cong., 2d Sess. 549 (1988);23 Customs Bulletin No. 36, 3 (T.D. 89-90, September 6, 1989), 59 F.R. 35127 (August 23, 1989). Although not binding on the contracting parties to the Harmonized System Convention or considered to be dispositive in the interpretation of the Harmonized System, the Explanatory Notes should be consulted on the proper scope of the Harmonized System. Id.

The Explanatory Notes to Heading 0408 state that "[t]his heading covers whole eggs, not in the shell, and egg yolks of all birds. The products of this heading may be fresh, dried, cooked by steaming or by boiling in water, moulded (e.g., cylindrical "long eggs"), frozen or otherwise preserved. All these fall in the heading whether or not containing added sugar or other sweetening matter and whether for use as food or for industrial purposes (e.g., in tanning)." (Bold-face and underling supplied emphasis.)

Based on the foregoing, it is our opinion that frozen inedible eggs out of shell, are classifiable, according to the terms of the heading, in Heading 0408 as "Birds' eggs, not in shell,...frozen...". The coverage of this heading is such that it includes eggs used as food, as well as eggs used in applications other than as human food.

The applicable subheading for frozen inedible EGGS, not in shell, will be 0408.99.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for Birds' eggs, not in shell, and egg yolks, fresh, dried, cooked by steaming or by boiling in water, molded, frozen or otherwise preserved, whether or not containing added sugar or other sweetening matter:...Other: ...Other. The rate of duty will be 12.1 cents per kilogram.

Goods classifiable under subheading 0408.99.0000, HTS, which have originated in the territory of Canada, will be entitled to a 8.4 cents per kilogram rate of duty, if entered in calendar year 1991, under the United States-Canada Free Trade Agreement (FTA) upon compliance with all applicable regulations. For merchandise entered or withdrawn from warehouse on or after January 1, 1992, the rate of duty will be 7.2 cents per kilogram.

This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177).

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

Jean F. Maguire
Area Director

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