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HQ 953340

June 4, 1993

CLA-2 CO:R:C:F 953340 JGH

CATEGORY: CLASSIFICATION

TARIFF NO.: 1701.99.0135/1701.99.0235

Mr. Alfred Saroni Jr.
ABWD, Inc.
P.O. Box 8305
Emeryville, California 94608

RE: Reconsideration of New York Ruling Letter (NYRL) 872561

Dear Mr. Saroni:

Your letter of December 17, 1992, concerns the classification of a "Sweetened Forage" from Canada. This product was the subject of NYRL 872561 (dated April 6, 1992), in which it was classified as sugar in subheading 1701.99.0125, Harmonized Tariff Schedule of the United States (HTSUS) or 1701.99.0225, HTSUS, depending on quota status. It was further subject to the sugar fees of 9904.40.20, HTSUS. Effective January 1, 1993, these subheadings were changed to 1701.99.0135 and 1701.99.0235, HTSUS.

FACTS:

It is now contended that the imported product is a feed preparation of a type classifiable in subheading 2309.90.10, HTSUS. It is composed of about 83 percent sugar, 15 percent corn and 2 percent ground limestone, and is described as a basic initial formulation, not generally used by itself but blended with other ingredients to make various formulations for the better nutrition of young pigs.

A statement from International Distributing Corporation, which was said to be a potential purchaser of "Sweetened Forage," described the import as an ingredient in a pig starter feed; it would be blended with other feed ingredients to make a complete ration. A feed starter with 15 percent sugar is said to be commonly used in the feed industry. - 2 -

A statement from a Canadian laboratory is to the effect that the imported product has about 83 percent sugar, 12 percent corn, and 2 percent limestone. The corn is said to provide nutrition, the limestone to aid digestion, and the sugar, the main source of carbohydrate, intended to meet the specific energy requirements of young pigs. It is added that the preparation of the product would not meet the standards for human food, especially because of the presence of limestone. A copy of an article from The Wall Street Journal concerned the studies made on the calming effect of sugar on babies.

ISSUE:

Classification of a sugar mixture used in animal feed formulations under subheading 2309.90.10, HTSUS, as other mixed feed or mixed feed ingredients.

LAW AND ANALYSIS:

It is alleged that the Explanatory Notes (ENs) provide specifically for "Sweetened Forage" as well as preparations for use in making complete feeds in Heading 2309, HTSUS. The ENs describe "Sweetened Forage" as a mixture of molasses or other similar sweetening substances (generally more than 10 percent by weight) with one or more other nutrients, usually used for feeding cattle, sheep, horses or pigs. The ENs go on to state that as a rule, the sweetened preparations are fed directly to the animals; but adds that some of the preparations combine molasses with highly nutritive foods to make complete foods or supplementary feeds. The sweetened products described by the ENs are distinguishable from the imported sugar mixture in question. The imported mixture with its high sugar content is not fed directly to animals. Furthermore, molasses is, of course, not sugar but a byproduct left after the sucrose is removed from the cane; usually it has a sucrose content of only 30 percent. There is no evidence that a product like the import which is essentially sugar would be considered by the ENs to be a "Sweetened Forage" as imported.

The ENs go on to state that the provision also provides for preparations known in the trade as "premixes", which are, generally speaking, said to be compositions consisting of a number of substances (sometimes called additives) which vary according to the animal production required. The types described were:

(1) Those which improve digestion and ensure that the animal makes good use of the feeds and safeguard its health: vitamins, amino acids, antibiotics,flavorings and appetizers. - 3 -

(2) Those designed to preserve the feeding stuffs until consumption: stabilizers, antioxidants.

(3) Those which serve as carriers and which may consist of either of ones or more organic nutritive substances (manioc or soya flour or meal, middlings, yeast, various residues of the food industry) or of inorganic substances (e.g., magnesite, chalk, kaolin, salt, phosphates)

The imported product fits neither the EN definition of "Sweetened Forage" nor that for preparations for use in making complete feeds or supplementary feeds; nor does it come under the definition of "mixed feeds and mixed-feed ingredients" of U.S. Note 1, Chapter 23, HTSUS, as it is not "prepared". As imported the merchandise is essentially sugar; it is not a feed or a feed preparation (as described above) but a sugar source for use in the production of a finished product. Under the General Rules of Interpretation (GRIs), GRI 3(b) applies to mixtures of different materials or made up of different components which can not be classified by reference to relative specificity and, therefore, are classified as if they consisted of the component which gives them their essential character. In this case, the import's essential character is its sugar content.

HOLDING:

The imported sugar mixture is classifiable as sugar in subheading 1701.99.0135 or 1701.99.0235, HTSUS, as entered pursuant to the provisions of U.S. Note 3, Chapter 17, HTSUS, and subject to the fees of subheading 9904.40.20, HTSUS.

NYRL 872561 affirmed.

Sincerely,

John Durant, Director

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