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HQ 956192


July 25, 1994

CLA-2 CO:R:C:F LPF 956192

CATEGORY: CLASSIFICATION

TARIFF NO.: 2309.90.1032; 2309.90.3190; 2309.90.3990

Mr. Richard Fischer
Advanced Microbial Systems, Inc.
P.O. Box 239
Shakopee, MN 55379-0239

RE: Reconsideration of NYRL 893889; Animal Feed in heading 2309, HTSUS; Preparations of a kind used in animal feeding; Import Restrictions under 9904.10.69

Dear Mr. Fischer:

This is in response to your letters dated March 30, 1994, May 4, 1994, and June 8, 1994, requesting reconsideration of New York Ruling Letter (NYRL) 893889, issued March 10, 1994. In that ruling four types of animal feeds were classified within subheading 2309.90, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as "Preparations of a kind used in animal feeding: Other." Three of the feeds, Oralin, Boviferm Ultra, and Boviferm Primo, were subject to import restrictions under subheading 9904.10.69, HTSUSA. The correct classification follows.

FACTS:

The four animal feed products at issue, imported from Germany, are Oralin, Boviferm Ultra, Boviferm Primo, and Boviferm Plus. Oralin consists of bacteria (pure Enterococcus faecium) and lactose. Boviferm Ultra is pure Oralin packaged in small pouches. It is added to milk replacer that is fed to young calves to safeguard their health. Boviferm Primo is composed of Oralin, peanut oil, lactose, Vitamin A palmitate, and vitamin E. It is packaged in syringes and will be fed to protect the health of young calves that are nursing. Boviferm Plus is made of whey powder, dextrose, rice flour, banana flakes, bentonite clay, sodium chloride, sodium bicarbonate, pectin, natural flavors, tannin, potassium chloride, Oralin, manganese chloride, calcium chloride, vitamin A, and vitamin E. It is used as a milk replacer feed for calves.

In your letter, dated June 8, 1994, you indicated that the manufacturer has changed its formula to include only lactose of U.S. origin.

ISSUE:

Whether the animal feed products are classifiable within heading 2309, HTSUSA, as preparations of a kind used in animal feeding or elsewhere in the HTSUS and are subject to import restrictions under subheading 9904.10.69, HTSUSA.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTSUSA. Most imported goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative section or chapter notes.

From your submission, it appears that both you and Customs agree as to the classification of the products, pursuant to GRI 1, within heading 2309 as preparations of a kind used in animal feeding. At the subheading level, it appears you and Customs concur that while Boviferm Plus is classifiable within subheading 2309.90.10, Oralin, Boviferm Ultra, and Boviferm Primo are classifiable within subheadings 2309.90.31 and 2309.90.39, respectively. However, you contend that the products classifiable within subheadings 2309.90.31 and 2309.90.39 are not subject to import restrictions under 9904.10.69 for several reasons.

First, you have obtained a U.S. Veterinary Permit for Importation and Transportation of Controlled Materials and Organisms and Vectors (hereinafter "Veterinary Permit"), issued May 19, 1994, from the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service. Apparently, you believe that the issuance of such a permit indicates that the USDA does not object to the importation of such products. Our office has learned that a Veterinary Permit merely certifies that the importation of a product will not jeopardize the health of domestic animals and that although the product may meet the USDA Vet Services' criteria regarding disease prevention, this does not mean that the product is exempt from import restrictions promulgated under Section 22 of the Agricultural Adjustment Act.

Second, you state that because the ban on German milk derivatives relates to livestock disease bacteria, and the pharmaceutical grade lactose is heat treated, USDA has no objection to its importation. You add that Customs has not banned other products containing pharmaceutical grade lactose as an incidental ingredient and that you would be surprised if Customs would ban the importation of products containing such small quantities of lactose. In this regard, we would clarify that it is Customs
function to classify products in their appropriate HTSUS subheading based on the GRIs, that is, by the statutory language within the HTSUS. We note that neither the appropriate HTSUS provisions for the animal feeds nor the quota language included in subheading 9904.10.69 indicates that heat treated pharmaceutical grade lactose or products containing a small quantity of lactose should be exempt from the import restrictions. The language simply provides a quota for animal feeds containing milk or milk derivatives. The product at issue contains "milk or milk derivatives."

Finally, you state that the manufacturer has changed its formula to include only lactose of U.S. origin. In this regard, we note that, in general, Customs administers and enforces the Section 22 quotas so that these import restrictions will apply to products "originating" from countries other than the U.S. Although the lactose may be of U.S. origin, upon manufacture in Germany, the product will be considered to originate in Germany and is to be treated as foreign, for quota purposes.

Any specific exclusions from the application of the Section 22 import restrictions to your transaction should be obtained from the Department of Agriculture. Otherwise, Customs will administer and enforce the import restrictions as provided for in subheading 9904.10.69.

HOLDING:

The Boviferm Plus is classified in subheading 2309.90.1032, HTSUSA, as "Preparations of a kind used in animal feeding: Other: Mixed Feeds or mixed feed ingredients, Other cattle feed, prepared," at a free rate of duty.

The Oralin and Boviferm Ultra are classified in subheading 2309.90.3190, HTSUSA, as "Preparations of a kind used in animal feeding: Other: Other: Animal feeds containing milk or milk derivatives: Containing over 10 percent by weight of milk solids, Other," at a duty rate of 7.5 percent ad valorem.

The Boviferm Primo, is classified in subheading 2309.90.3990, HTSUSA, as "Preparations of a kind used in animal feeding: Other: Other: Animal feeds containing milk or milk derivatives: Other, Other," at a duty rate of 7.5 percent ad valorem.

The Oralin, Boviferm Ultra, and Boviferm Primo are subject to import restrictions under subheading 9904.10.69, HTSUSA. Because the annual quota allocation under subheading 9904.10.69 for products from Germany is "None," this product is prohibited from entry into the United States.

NYRL 893889 is affirmed.

Sincerely,

John Durant, Director
Commercial Rulings Division

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