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HQ 956650




March 23, 1995

CLA-2 CO:R:C:F 956650 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 2309.10.0090

District Director of Customs
610 S. Canal St.
Chicago, IL 60607

RE: Request for Further Review of Protest 3901-93-102517, Dated December 14, 1993, Concerning Certain Cat Vitamin Treats

Dear Mr. Roster:

This ruling is on a protest that was filed against your decisions of September 17 and November 5, 1993, regarding 3 entries of cat vitamin treats from the Netherlands.

FACTS:

The product under consideration are cat vitamin treats in quantities of 100 tablets packaged for retail in other than air- tight containers. Entries for the product had been liquidated under subheading 9903.23.35, Harmonized Tariff Schedule of the United States Annotated (HTSUSA) which applies to merchandise from a member country of the European Union (EU) which is classifiable under subheading 2309.10.0010 or 2309.10.0090, HTSUSA.

ISSUE:

Is subheading 9903.23.35, HTSUSA, applicable to the subject product.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by 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 headings and any relative - 2 -
section and chapter notes. If GRI 1 fails to classify the goods and if the headings and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

Both the importer and Customs agree that the primary classification of the subject cat treats and that the merchandise is a product of the EU. There, however, is disagreement as to whether the treats are "mixed feed and mixed-feed ingredients" as specified in Additional U.S. Note 1 to Chapter 23, HTSUSA. The product would, pursuant to that note and in order to be subject to the aforementioned Chapter 99 provision, have to consist of not less than 6 percent by weight of grain or grain products.

Multiple analyses of the products by a Customs laboratory generally indicated that the product contained in excess of 6 percent by weight of grain or grain products. One such analysis concluded that the product contained less than 6 percent by weight of gain or grain products. Presuming that the same product was being analyzed in all instances, a question existed as to a basic fact necessary for the proper classification of the treats.

The importer, in connection with the filing of the instant protest, submitted a detailed report from a Dutch laboratory which analyzed a sample of the product from the same lot as that covered by the subject entries. The importer also submitted the report of an independent private consultant analyzing the finding of an independent U.S. laboratory which specializes in the testing of foods and feeds. These reports support the importer's position that the product contains less than 6 percent by weight of grains.

Although we would normally rely solely on the findings of the Customs laboratory, because of one of the findings by our lab that the product may contain less than 6 percent by weight of grain and the documentation submitted by the importer as to the findings of two independent laboratories which conflict with the Customs lab findings that the product generally contained in excess of 6 percent by weight of grains, we referred all the documents of record to the Headquarters laboratory for analysis and evaluation.

The Customs Headquarters laboratory analyzed the detailed reports of the two private laboratories and noted that the product is homogeneous and highly processed which makes identification of its components quite difficult. It noted that - 3 -
while prior Customs laboratory analyses which involved the acid hydrolysis method or breakdown of starch into sugars was a valid and time tested method of analysis, it noted that the extraction process in such analysis removes all polysaccharides. This is significant since the product contains 3 non-starch polysaccharides (glycogen, mannan and glucan) and their removal may interfere with the analysis making the Customs laboratory results not incorrect but rather inconclusive. The inclusion of results obtained by the hydrolysis of glycogen (animal starch) with the vegetable starch from grains into the total percentage of calculate grain, would produce some question as to the validity of the analysis.

The Customs Headquarters laboratory, recognizing these possible deficiencies, conducted an extensive analysis of the information and documents submitted by the importer with its protest. Based thereon, it has advised us that the conclusion suggested by the importer was reasonable and that we could rely on the data supplied by the importer. Accordingly, we find that the instant product contains less than 6 percent by weight of grain or grain products, that it is not a mixed feed or mixed- feed ingredient as defined in Additional U.S. Note 1 to Chapter 23, HTSUSA, and that subheading 9903.23.35, HTSUSA, is, therefore, inapplicable.

HOLDING:

Cat treats in non air tight containers, which contain both vegetable and animal starch, where the vegetable starch component, indicating the presence of grain or grain products, is less than 6 percent by weight, are classifiable in subheading 2309.10.0090, HTSUSA. Products so classifiable are subject to a free general rate of duty. Subheading 9903.23.35, HTSUSA, is inapplicable thereto.

Since reclassification of the merchandise as indicated above will result in the same rate of duty as claimed you are instructed to allow the protest in full.

A copy of this ruling should be attached to the 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 3553-065, dated August 4, 1993, Subject, Revised Protest Directive, this decision should be provided by you office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with this decision
must be accomplished prior to the mailing of the decision. 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 the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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