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HQ 961719




July 13, 1998
CLA-2 RR:CR:GC 961719 RTR

CATEGORY: CLASSIFICATION

TARIFF NO.: 0712.90.4040

Ms. Susan King
James J. Boyle & Company
7505 N.E. Ambassador Place, #B
Portland, Oregon 97220

RE: Dried garlic flakes; intended for animal feed; NY C82915.

Dear Ms. King:

This is in response to your letter, dated March, 16, 1998, on behalf of Toklat Originals, Inc., requesting reconsideration of NY C89215 (sic., C82915), dated January 7, 1998. In NY C82915, Customs classified dried garlic from England in subheading 0712.90.4040, Harmonized Tariff Schedule of the United States (HTSUS), as "dried garlic, not further prepared, other than flour or powder." That ruling also dealt with classification of an additional article of merchandise, "Herbal Lick." However, we limit this ruling to the sole issue of the classification under the HTSUS of dried garlic.

FACTS:

The merchandise, consisting of spray-dried garlic flakes containing a high level of Allicin, is an herbal equine feed supplement used in the prevention and treatment of various disorders in horses. The merchandise is not meant for human consumption, and is put up for sale in packages which clearly indicate that it is intended for use in animal feed.

ISSUE:

Whether dried garlic is classified in the eo nomine provision for dried vegetables in heading 0712, HTSUS, or in a use provision of heading 2309, HTSUS, as a preparation of a kind used in animal feeding.

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS, in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The following provisions are under consideration:

0712 Dried vegetables, whole, cut, sliced, broken or in powder, but not further prepared:

0712.90 Other vegetables; mixtures of vegetables:

0712.90.40 Garlic
............................................... 31.5%

0712.90.4040 Other

0712.90.8000 Other vegetables; mixtures of vegetables
.................................... 9.9%

2309 Preparations of a kind used in animal feeding:

2309.90 Other:
Other:
Other:
Other:

2309.90.9500 Other
................
1.9%

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized system. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

You contend that the merchandise is classifiable in heading 2309, HTSUS, as a preparation of a kind used in animal feeding. In support, you indicate that the merchandise is not meant for human consumption, but is marketed exclusively as an herbal feed supplement used in the prevention and treatment of various disorders in horses. Specifically, you indicate that the merchandise contains the anti-bacterial agent Allicin.

Our research has revealed that Allicin occurs naturally in garlic. That the merchandise might be good for the health of horses is irrelevant to the issue of tariff classification, because its capacity to produce salubrious effects does not change the fact that the merchandise is merely dried garlic. Neither does the fact that the merchandise is marketed and labeled as a food supplement for animals, rather than for humans, render it classifiable in heading 2309, HTSUS. It has long been the practice of the Customs Service to classify vegetables in the specific named tariff provisions for them, even if the vegetable itself is not intended for human consumption. See HQ 064434, dated March 5, 1980 (TSUSA ruling on cull carrots for cattle), HQ 086111, dated August 27, 1990 (TSUSA ruling on bean culls), HQ 089013, dated August 2, 1991 (HTSUS ruling on bean culls), NY 874712, dated June 2, 1992 (HTSUS ruling on cull vegetables for animal feed), and NY 806945, dated March 9, 1995 (HTSUS ruling on dried, culled beans for animal feed).

Legal Note 1 to chapter 23, HTSUS, provides that:

Heading 2309 includes products of a kind used in animal feed, not elsewhere specified or included, obtained by processing vegetable or animal materials to such an extent that they have lost the essential characteristics of the original material, other than vegetable waste, vegetable residues and by products of such processing. (Emphasis supplied.)

Your letter indicates that the merchandise is subjected to no process other than desiccation, which removes moisture, while concomitantly reducing its size. By virtue of Legal Note 1 to chapter 23, HTSUS, merchandise of heading 2309, HTSUS, must be obtained by processing to such an extent that the essential character of the original material is lost. The desiccation process to which the garlic is subjected only removes moisture and reduces the size of the merchandise. There is no fundamental change in the merchandise which causes it to lose its essential character. For this reason, the merchandise is not classified in chapter 2309, HTSUS.

Legal Note 1 to chapter 23, HTSUS, also provides that "(h)eading 2309 includes products of a kind used in animal feed, not elsewhere specified or included..."
We are of the opinion that the merchandise is specifically described eo nomine in subheading 0712.90.4040, HTSUS, which provides for "Dried vegetables, whole, cut, sliced, broken or in powder, but not further prepared; Other vegetables; mixtures of vegetables: Garlic; Other."

We also considered the applicability of the general rule that an article described with equal specificity by both a "use" provision and an "eo nomine" provision is more specifically provided for in the "use" provision. If applicable, this rule would seem to favor classification of the merchandise in heading 2309, HTSUS. Recently in Mitsui Petrochemicals (America), Ltd., v. U.S., No. 97-108, slip op. at 41 (U.S. Ct. Int'l Trade Jul. 30, 1997), the Court of International Trade (CIT) said that "...many courts have found that an article covered under an eo nomine provision is preferable over use provisions in certain circumstances." Totes, Inc., v. U.S., 13 Fed.Cir. (T) ___, 69 F.3d 495 (1995), U.S. v. Simon Saw & Steel Co., 51 CCPA 33 (1964), Border Brokerage Co., Inc., v. U.S., 65 Ct. Cust. 373 (1970). Quoting the Court of Customs and Patent Appeals in U.S. v. Electrolux Corp., 46 CCPA 143 (1959), the CIT found that "the doctrine of use' is only an aid to construction and that the rule of specificity remains at the heart of correct classification." Thus, we are compelled to return to the question of whether the merchandise is more specifically described eo nomine in heading 0712, HTSUS, than in the "use" provision of heading 2309, HTSUS. For reasons stated above, we believe that it is.

In your letter, you also suggest that the merchandise might be classified in subheading 0712.90.8000, HTSUS, which provides for "Other vegetables; mixtures of vegetables." For the reasons stated above, we believe that the merchandise is specifically described in subheading 0712.90.4040, HTSUS. The rate of duty is 31.5% ad valorem.

Accordingly, we affirm NY C82915.

HOLDING:

Dried garlic intended for animal feed is classified in subheading 0712.90.4040, HTSUS, as "Dried vegetables, whole, cut, sliced, broken or in powder, but not further prepared; Other vegetables; mixtures of vegetables: Garlic; Other."

Sincerely,

John Durant, Director
Commercial Rulings Division

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