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HQ 963794




March 13, 2001

CLA-2 RR:CR:GC 963794ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 2309.90.95

Mr. Jens Thorsen
Chr. Olesen & Co. A/S
Ryvangs Alee 18
DK-2100, Kobenhaven
Denmark

RE: Cat Vitamin Premix Complete; Dog Vitamin Premix Complete; Super Premium Vitamin Premix Complete; HQ 961913; NY D88029 affirmed.

Dear Mr. Thorsen:

This is in response to your letter dated November 19, 1999, to the Director, National Commodity Specialist Division, New York, in which you request reconsideration of New York Ruling Letter (NY) D88029, dated May 13, 1999, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of three animal feed vitamin premixes which had been issued to the Fritz Companies on your behalf. In NY D88029, the products were classified in subheading 2309.90.95, HTSUS, which provides for preparations of a kind used in animal feeding, other.

Your letter was forwarded to this office for response. We regret the delay.

FACTS:

The merchandise at issue is described as follows:

1. "Cat Vitamin Premix Complete" (Cat Complete 3740) is a complete vitamin premix for cats that has been blended on a carrier of soybean hulls and calcium carbonate. The ingredients are: Vitamin A, riboflavin, Vitamin E, biotin, Vitamin B12, panthothenic acid, Vitamin D3, folic acid, menadione sodium bisulfite complex, niacin, pyridoxine HCL, and thiamine mononitrate. The goods are shipped in 50 lb. units.

2. "Dog Vitamin Premix Complete" (Vitamin Dog 3729) is a complete vitamin premix for dogs that has been blended on a carrier of ground rice hulls and calcium carbonate. The ingredients are: Vitamin A, riboflavin, Vitamin E, biotin, Vitamin B12, panthothenic acid, choline chloride, Vitamin D3, folic acid, menadione sodium bisulfite complex, niacin, pyridoxine HCL, and thiamine mononitrate. The goods are shipped in 50 lb. units.

3. "Super Premium Vitamin Premix Complete" (Super Premium 3732) is a complete vitamin premix for pets that has been blended on a carrier of ground rice hulls. The ingredients are: Vitamin A, riboflavin, Vitamin E, biotin, Vitamin B12, panthothenic acid, Vitamin D3, folic acid, menadione sodium bisulfite complex, niacin, pyridoxine HCL, and thiamine mononitrate. The goods are shipped in 50 lb. units.

According to information you have provided, the products are highly concentrated vitamin premixes manufactured in Denmark for final use by a pet food manufacturer in the United States in the production of both wet and dry food for cats and dogs. You also state that in its imported form, the product is so concentrated it would be toxic, producing a vitamin overdose.

You state that you believe the products are vitamin concentrates and should be classified in subheading 2936.90.00, HTSUS.

ISSUE:

What is the classification of vitamin premixes blended for use in pet foods.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all 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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied in order.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

2309 Preparations of a kind used in animal feeding:

2309.10.00 Dog or cat food, put up for retail sale

2309.90 Other

2309.90.10 Mixed feeds or mixed feed ingredients

Other:
Animal feeds containing milk or milk derivatives:

Other:

2309.90.60 Animal feeds containing egg

Other:

2309.90.70 Preparations, with a basis of vitamin B12, for supplementing animal feed

2309.90.95 Other.

2936 Provitamins and vitamins, natural or reproduced by synthesis (including natural concentrates), derivatives thereof used primarily as vitamins, and intermixtures of the foregoing, whether or not in any solvent.

2936.90.00 Other, including natural concentrates.

In your original classification request, you suggest that heading 2936, HTSUS, was the correct classification for this product. At first reading, the heading appears to cover the subject mixtures of vitamins. However, both the chapter notes and the ENs justify exclusion of the articles. Chapter Note 1 to Chapter 29, HTSUS, states that the headings of the chapter apply only to “(a) [s]eparate chemically defined organic compounds”. The vitamins may be separate chemically defined organic compounds, but the carriers which have been mixed with them are not. By virtue of this Note, the vitamin/carrier mixtures are excluded from classification in Chapter 29, HTSUS. Even if the mixture had not contained added carriers, we would have reached the same result because the EN to heading 29.36 states, in pertinent part, that the heading includes: (c) Intermixtures of vitamins, ... provided that the quantity added or the processing in no case exceeds that necessary for their preservation or transport and that the addition or processing does not alter the character of the basic product and render it particularly suitable for specific use rather than for general use. The subject products cannot be classified in heading 2936, HTSUS, because they have been processed far beyond that which is necessary for preservation or transportation. Additionally, the precise formulae in which the various vitamins in the products have been mixed has rendered the products suitable for specific use as a dietary supplement additive for pet foods rather than general use.

The instant premixes for dog and cat foods appear to be food supplements that are added to pet food preparations, not for therapeutic purposes (for treatment of any specific condition or ailment), but rather, for the purpose of maintaining health and general well-being. Accordingly, these preparations are not medicaments of Chapter 30, HTSUS. Further, the instant premixes are not vitamins, per se, but rather animal feed preparations containing vitamins.

The EN to heading 23.09, page 187, describes these products:

(C) PREPARATIONS FOR USE IN MAKING THE COMPLETE FEEDS OR SUPPLEMENTARY FEEDS DESCRIBED IN (A) AND (B) ABOVE

These preparations, known in trade as “premixes”, are, generally speaking, compound compositions consisting of a number of substances (sometimes called additives) the nature and proportions of which vary according to the animal production required. These substances are of three types :

(1) Those which improve digestion and, more generally, ensure that the animal makes good use of the feeds and safeguard its health : vitamins or provitamins, amino-acids, antibiotics, coccidiostats, trace elements, emulsifiers, flavourings and appetisers, etc.

(2) Those designed to preserve the feeding stuffs (particularly the fatty components) until consumption by the animal: stabilisers, anti-oxidants, etc.

(3) Those which serve as carriers and which may consist either of one or more organic nutritive substances (manioc or soya flour or meal, middlings, yeast, various residues of the food industries, etc.) or of inorganic substances (e.g., magnesite, chalk, kaolin, salt, phosphates).

The instant premixes are properly classified in heading 2309, HTSUS. See, also, Vitek Supply Co., v. United States, 17 CIT 111 (1993), which classified a veal premix containing 6 percent by weight grain byproducts and 94 percent vitamins and minerals in heading 2309, HTSUS, as an animal feed.

The premixes are imported on 50-pound bags and will be used as ingredients in pet foods. Since they are not put up for sale to the retail customer, they are precluded from classification in subheading 2309.10. Accordingly, they are classifiable in subheading 2309.90, HTSUS.

Subheading 2309.90 is further subdivided, at the secondary level, into subheadings 2309.90.10, for Mixed feeds or mixed feed ingredients, and 2309.90. Other.

The term "Mixed feeds or mixed feed ingredients" is defined in additional U.S. note 1, Chapter 23, HTSUS, as follows:

1. 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.

Of the instant premixes, "Dog Vitamin Premix Complete" contains 5% by weight ground rice hulls (a byproduct obtained from milling rice), "Cat Vitamin Premix Complete" contains no grain products (only soy meal), and "Super Premium Vitamin Premix Complete" contains 3.942% wheat middlings (a byproduct obtained from milling wheat). Since none of these products contains 6% or more by weight of grain or grain products, classification in subheading 2309.90.10, HTSUS, is statutorily excluded. Accordingly, classification is in the provision for "Other" products of the heading.

Finally, since these premixes contain no milk derivatives or egg products, and because Vitamin B-12 is not a basis for these premixes, classification in the intermediate subheadings which include articles containing or composed of these ingredients is also precluded.

Based on the above, the instant premixes are classifiable in the final residual subheading of 2309.90.95, HTSUS, as "Other". For a ruling on a similar product, see HQ 961913, dated July 2, 1999.

HOLDING:

"Dog Vitamin Premix Complete," "Cat Vitamin Premix Complete," and "Super Premium Vitamin Premix Complete" are classified in subheading 2309.90.95, HTSUS, which provides for Preparations of a kind used in animal feeding: Other, Other, Other, Other.

NY D88029, dated May 13, 1999, is affirmed.

Sincerely,

John Durant, Director
Commercial Rulings Division


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