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July 29, 1999

CLA-2-23:RR:NC:2:231 E84026

CATEGORY: CLASSIFICATION

TARIFF NO.: 2309.90.1050

Mr. Manuel Silveira
Grober Animal Nutrition
162 Savage Drive
Cambridge, Ontario N1T 1S4
Canada

RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA) of calf milk replacer from Canada; Article 509; correction to NYRL E82370

Dear Mr. Silveira:

This ruling is issued to correct a clerical error regarding the HTSUS number contained in New York Ruling Number E82370 of June 8, 1999. The subheading was inadvertantly taken to be of equal status with subheading 2309.90.10. This ruling will replace NYRL E82370.

The submitted samples are calf starter and calf finisher rations; they are used to replace milk that a young animal gets from its mother. Milk replacers are products that contain large quantities of protein, fat, lactose, vitamins, and minerals. These products contain over 10 percent by weight of milk solids (54 percent whey and 23.3 percent whey protein concentrate). The milk replacers will be sold to major feed manufacturers or distributors that service smaller feed mills. Farmers are the end users of the products. The merchandise is described thus:

1. "Calf Starter Ration 20/15." The ingredients are 20 percent minimum crude protein, 15 percent minimum crude fat, 8 percent maximum ash, and 0.25 percent maximum crude fiber. Calf Starter Ration contains 54 percent whey (of U.S. origin), 23.3 percent whey protein concentrate (US origin), 14.2 percent animal fat (U.S. origin), 6 percent wheat gluten (U.S. origin), and 2.5 percent vitamins and minerals (U.S. origin). 2. "Calf Finisher Ration 16/18." The ingredients are 18 percent minimum crude fat, 16 percent minimum crude protein, 8 percent maximum ash, and 0.25 percent maximum crude fiber. Calf Finisher Ration contains 66 percent whey (of U.S. origin), 17.6 percent animal fat (U.S. origin), 7.6 percent whey protein concentrate (U.S. origin), 6 percent wheat gluten (U.S. origin), and 2.8 percent vitamins and minerals (U.S. origin).

Additional U.S. Note 1 to Chapter 23, HTS, states, "The term 'mixed feeds and mixed- feed ingredients' in subheading 2309.90.10 embraces products of heading 2309 which are admixtures of grains (or products, including byproducts, obtained in milling grains) with molasses, oilcake, oil-cake meal or feedstuffs, and which consist of not less than 6 percent by weight of grain or grain products." We note that the products contain 6 percent wheat gluten (a grain byproduct), and that they meet the language articulated in Additional U.S. Note 1 to Chapter 23. Accordingly, the applicable subheading for "Calf Starter Ration 20/15" and "Calf Finisher Ration 16/18" will be 2309.90.1050, Harmonized Tariff Schedule of the United States (HTS), which provides for preparations of a kind used in animal feeding, other, mixed feeds or mixed feed ingredients, other. The rate of duty will be free.

For marking purposes, these goods are of U.S. origin, and marking is not required. Since they have been advanced in value or improved in condition, they may be entered as Canadian goods for duty purposes. Sec. 102.19(b) CR states, "If, under any other provision of this part, the country of origin of a good which is originating within the meaning of Sec. 181.1(q) of this chapter is determined to be the United States and that good has been exported from, and returned to, the United States after having been advanced in value or improved in condition in another NAFTA country, the country of origin of such good for Customs duty purposes is the last NAFTA country in which that good was advanced in value or improved in condition before its return to the United States." Accordingly, for marking purposes, Customs regards these good as originating in the U.S. and marking is not required. For duty purposes, they are considered to be Canadian goods, as they have been advanced in value or improved in condition in Canada [Sec. 102.19(b) CR].

Additional requirements may be imposed on these products by the Food and Drug Administration. You may contact the FDA at:

Food and Drug Administration
Division of Regulatory Guidance
HFF 314, 200 C Street, S.W.
Washington, DC 20204

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 CFR 181).

This ruling letter is binding only as to the party to whom it is issued and may be relied on only by that party.

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Thomas Brady at (212) 637-7064.

Sincerely,

Robert B. Swierupski
Director

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