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HQ 953888


October 12, 1993

CLA-2 CO:R:C:F 953888 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 1003.00.4000

District Director of Customs
1000 2nd Ave.
Room 2200
Seattle, WA 98104

RE: Request for Further Review of Protest 3004-92-100164, Dated October 20, 1992, Concerning a Product Described as Barley Screenings

Dear Mr. Holland;

This ruling is on a protest that was filed against your decision of October 16, 1992, in the liquidation of an entry covering the referenced product.

FACTS:

The product is described as a #3 barley and as a by-product or screening that is left over after good malting barley has been screened out. The product is said to be unacceptable for malting purposes or for rolling at the feed mill level and that it can only be ground for feeding purposes.

ISSUE:

Is the subject product classifiable as barley or a barley screening?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by - 2 -
the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the heading and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the heading and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

We considered whether the product should be considered as a residue or other by-product of the sifting, milling or other working of cereals or leguminous plants and, therefore, classifiable in subheading 2302.40.00, HTSUSA, as claimed by the importer, or in subheading 1003.00.4000, HTSUSA, as barley, other, in accordance with the liquidation decision.

Pursuant to section 12.16 of the Customs Regulations (19 CFR 12.16), imports of agricultural and vegetable seeds and screenings thereof are governed by the rules and regulations prescribed under section 402(b) of the Federal Seed Act of August 9, 1939 (7 CFR part 201). Within the Federal Seed Act, the term "screening" is defined:

"[S]creenings" shall include chaff, sterile, florets, immature seed, weed seed, inert matter, and any other materials removed in any way from any seed in any kind of cleaning or processing and which contain less than 25 per centum of live agricultural or vegetable seeds.

A definition of barley found in the Department of Agriculture Regulations (7 CFR 201.204) which set forth the provisions for the "Official United States Standards for Grain" specifies:

Grain that, before the removal of dockage, consists of 50 percent or more of whole kernels of cultivated barley (Hordeum vulgare L.) and not more than 25 percent of other grains for which standards have been established under the United States Grain Standards Act. The term 'barley' as used in these standards does not include hull-less barley or black barley.

The above provisions from sources other than the Federal Seed Act are not binding but are utilized as guidance.

In regard to the composition of the above barley product we note that the California Department of Food and Agriculture examined the barley in question and found that it consisted of - 3 -

87 percent pure seed, 90 percent of which germinated. No black barley was found and only about 0.7 percent was hull-less.

Based on the above empirical evidence and the referenced regulations, we have concluded that the instant product should be classified as barley, other.

HOLDINGS:

Barley which does not meet the definition of barley screenings in the Federal Seed Act and is not usable as barley for malting purposes is classifiable as barley in subheading 1003.00.4000, HTSUSA, and is subject to a general rate of duty of .34 cents per kilogram.

Barley, the product of Canada, is, in accordance with General Note 3(c)(vii)(B), HTSUSA, eligible for a special rate of duty of .1 cent per kilogram, upon compliance with the provisions of the United States - Canada Free Trade Agreement (CFTA) and section 10.301 et seq., Customs Regulations (19 CFR 10.301 et seq.).

Since the classification indicated above is the same as the classification under which the entry was liquidated, you are instructed to deny the protest in full.

A copy of this ruling should be attached to Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be provided by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior thereto. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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