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HQ 962850




June 25, 1999

CLA-2 RR: CR:GC 962850K

CATEGORY: CLASSIFICATION

TARIFF NO.: 2309.90.1050

Randolph J. Stayin, Esq.
Barnes & Thornburg
Franklin Tower, Suite 500
1401 Eye Street, N.W.
Washington, D.C. 20005

RE: Reconsideration of New Your Ruling Letter (NYRL) D83361; Mixtures of Wheat Gluten and Soy Protein or Dried Meat By-Product

Dear Mr. Stayin:

This is in response to your letter of May 13, 1999, on behalf of the Wheat Gluten Industry Council (“WGIC”), requesting the revocation of NYRL D83361, dated October 23, 1998, issued to BCB International in behalf of Bio-Pro Marketing Limited (BPM), Harriston, Ontario, Canada. You refer to your letter as a petition by a domestic interested party under 19 U.S.C. 1516(a)(2)(c). We consider your letter as a request for information under 19 U.S.C. 1516 and, as requested, expedited our response.

You also asked for immediate and retroactive revocation of the ruling under 19 CFR 177.9(d). This regulation provides for the modification or revocation of any ruling letter “found to be in error or not in accordance with the current views of the Customs Service”. Before we can proceed under this regulation, we must arrive at the conclusion that NYRL D83361 is “in error or not in accordance with the current views of the Customs Service” and we are required to follow the procedures of 19 U.S.C. 1625. Our discussion under this issue follows.

FACTS:

In response to a letter dated October 9, 1998, from a customhouse broker submitted on behalf of Bio-Pro Marketing Limited, the Director, Customs National Commodity Specialist Division, New York, issued NYRL D83361 on October 23, 1998.

NYRL D83361 describes two premixes that will be used as feed ingredients in the manufacture of pet food; HPP Mix 191 GS consists of 90 % wheat gluten and 10 % soy protein and HPP Mix 199 GP consists of 90 % wheat gluten and 10 % dried meat by-product. The ruling indicates that the wheat gluten is sourced from various European countries and that the soy protein and the dried meat by-product are made in the United States. Further, the wheat gluten is blended with the soy protein or dried meat and made into the premixes in Canada.

The ruling held that the applicable provision for the premixes was subheading 2309.90.1050, Harmonized Tariff Schedule of the United States (HTSUS), as other preparations of a kind used in animal feeding, mixed feeds or mixed feed ingredients, with a general free rate of duty, and not subject to quota. Your opinion is that the premixes are classified in subheading 1109.00.1000, HTSUS, as wheat gluten, whether or not dried, to be used as animal feed, with a general rate of duty at 2.2 percent ad valorem and subject to the quantitative quota limitations of subheadings 9903.11.05/06/07, HTSUS, applicable for the European Union, as promulgated by Presidential Proclamation 7103, dated May 30, 1998, and effective June 1, 1998. Products from Canada are exempt from the quota limitations of subheadings 9903.11.05/06/07, HTSUS. Since the ruling classified the premixes in subheading 2309.90.1050, HTSUS, not subject to the quota limitations of the Proclamation, it was not necessary to determine whether the premixes were products of Canada or the European Union to determine whether they were subject to the quotas.

ISSUE:

The issue is whether the premixes were properly classified by NYRL D83361.

LAW AND ANALYSIS:

The classification of imported merchandise under the HTSUS is governed by the principles set forth in the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section and chapter notes and, unless otherwise required, according to the remaining GRI, taken in their appropriate order. Accordingly, we first have to determine whether the articles are classified under GRI 1.

Subheading 1109.00.1000, HTSUS, provides for wheat gluten, whether or not dried, to be used as animal feed. The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and General Rules of Interpretation of the HTSUS. The EN’s to heading 1109, state that

Gluten is extracted from wheat flour by simple aqueous separation from the other constituents (starch, etc.). It comes in the form of a whitish viscous liquid or paste (“_moist_” gluten) or a creamcoloured powder (dry gluten).

It consists essentially of a mixture of various proteins, the main ones being gliadin and glutenin (which account for 85 to 95 % of the total). The presence of these two proteins is characteristic of wheat gluten, which owes to them its elasticity and plasticity when mixed with water in suitable proportions.

Heading 1109, HTSUS, covers only wheat gluten. The heading does not provide for a mixture of wheat gluten and other materials, namely with soy protein or dried meat product. Thus, the premixed products cannot be classified in heading 1109, HTSUS, by virtue of GRI 1.

Subheading 2309.90.1050, HTSUS, provides for other preparations of a kind used in animal feeding, mixed feeds or mixed feed ingredients. Note 1, Chapter 23, HTSUS, states that

Heading 2309 includes products of a kind used in animal feeding, 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 byproducts of such processing. Emphasis added.

Also, Additional U.S. Note 1, Chapter 23, HTSUS, states that

The term "mixed feeds and mixedfeed 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, oilcake meal or feedstuffs, and which consist of not less than 6 percent by weight of grain or grain products.

The General Note for Chapter 23 of the EN’s states that

This Chapter covers the various residues and wastes derived from vegetable materials used by foodpreparing industries, and also certain products of animal origin. The main use of most of these products is as animal feeding stuffs, either alone or mixed with other materials, although some of them are fit for human consumption. Certain products (e.g., wine lees, argol, oilcake) also have industrial uses.

The EN’s for heading 2309 state, in part, that

This heading covers sweetened forage and prepared animal feeding stuffs consisting of a mixture of several nutrients designed:

(1) to provide the animal with a rational and balanced daily diet (complete feed);

(2) to achieve a suitable daily diet by supplementing the basic farmproduced feed with organic or inorganic substances (supplementary feed); or

(3) for use in making complete or supplementary feeds. Emphasis added.

Inasmuch as both HPP Mix GS and HPP Mix 199 GP are mixtures of a kind used in animal feeding, mixed feeds or mixed feed ingredients, they are clearly described by subheading 2309.90.1050, HTSUS.

The quota provisions promulgated by Presidential Proclamation 7103 are limited to wheat gluten, whether or not dried, classified in subheadings 1109.00.10, and 1109.00.90, HTSUS. Also, note that the footnote on page 1-3, of Investigation No. TA-201-67, United States International Trade Commission, states that

The imported article covered by this investigation is wheat gluten, the natural portion of wheat that is extracted after wheat is milled into flour. Wheat gluten is provided for in subheadings 1109.00.10 and 1109.00.90 of the Harmonized Tariff Schedule of the United States (HTS).

Since the premixed products are classified in subheading, 2309.90.1050, HTSUS, they are not subject to quota at this time.

HOLDING:

Based upon the above discussion, we conclude that the premixed products are classified by virtue of GRI 1 in subheading 2309.90.1050, HTSUS.

NYRL D83361 is affirmed and represents the official position of the Customs Service. Accordingly, we are precluded from proceeding under 19 CFR 177.9(d) and/or 19 U.S.C. 1625.

For your information, in accordance with 19 U.S.C. 1516(a), if you believe that the classification by Customs is not correct, you may file a petition with Customs following the procedures of that statute and 19 CFR Part 175. Customs will then prepare a notice for publication in the Federal Register of the receipt of your petition and invite comments from the public. After a review of the comments, Customs will notify you of its decision whether the stated position is correct or not correct.

Sincerely,

John Durant, Director

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