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HQ 967860




May 30, 2006

CLA-2-RR:CTF:TCM 967860 RSD

CATEGORY: CLASSIFICATION

TARIFF No. 3307.90.0000

Port Director
U.S. Customs and Border Protection
4915 South Howell Avenue
Suite 200
Milwaukee, Wisconsin 53207

RE: Application for Further Review of Protest Number 3701-05-100007 concerning the classification of Hoofsure Endurance Footbath

Dear Port Director:

This is in response to your memorandum dated August 10, 2005, forwarding the request for further review of Protest Number 3701-05-100007 filed by counsel on behalf of NRV, Inc., concerning the classification of a product known as the “Hoofsure Endurance Footbath” under the Harmonized Tariff Schedule of United States (HTSUS).

FACTS:

This protest concerns “Hoofsure Endurance Footbath” (Hoofsure), a product that is used for the care of certain farm animals. Hoofsure is an antibacterial/disinfectant preparation based on organic acids, tea tree oil and wetting agents. It is composed of formic acid, benzoic acid tea tree oil as the active ingredients and ethanol, polysorbate 80, blue liquid color and water as the inactive ingredients. Polysorbate 80, CAS 90005-65-6, also known as Ethoxylated sorbitan ester, polyoxyethylene sorbitan monooleate, and (x)-sorbitan mono-9-octadecenoate poly (oxy-1, 2-ethanediyl), is an organic surfactant used in foods and cleaners. Hoofsure is used in maintaining the hoof condition of cattle and sheep. It has a preventive application by softening the hooves to minimize cracks where bacteria can become established. In particular, Hoofsure is used to combat digital dermatitis, also known as hairy heel warts, a condition that causes widespread severe lameness, decreased milk yield, weight loss and decreased reproductive performance.

Hoofsure is packaged in a liquid form in 1.25 to 55 gallon containers. It is diluted with water at a rate of 1:100 before it is used. The product is applied by placing it in a footbath through which the cattle and sheep walk. Hoofsure is intended for regular use as a part of a maintenance program for animal hooves, and it is not intended for localized use as a remedy for existing hoof ailments.

When the entry under protest was liquidated, Hoofsure was classified in subheading 3307.90.00, HTSUS, as: pre-shave, shaving or after-shave preparation, personal deodorants, bath preparation, depilatories and other perfumery, cosmetic or toilet preparations, not elsewhere specified or included; prepared room deodorizers, whether or not having disinfectant properties. Protestant contends that Hoofsure should be classified in subheading 3402.20.51, HTSUS, as an organic surface-active agent or surface-active preparation, washing preparation or cleaning preparation put up for retail sale which does not contain aromatic agents.

ISSUE:

Whether in accordance with Note 4 to Chapter 33, HTSUS, is Hoofsure classified in heading 3307, HTSUS, as an animal toilet preparation or in heading 3402, HTSUS, as an organic surface-active agent or surface-active preparation, washing preparation or cleaning preparation whether or not containing soap.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined 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.

The 2003 HTSUS provisions under consideration are as follows:

3307 Pre-shave, shaving or after-shave preparations, personal deodorants, bath preparations, depilatories, and other perfumery, cosmetic or toilet preparations, not elsewhere specified or included; prepared room deodorizers, whether or not perfumed or having disinfectant properties:

3307.90.00 Other.

3402 Organic surface-active agents (other than soap); surface-active preparations, washing preparations (including auxiliary washing preparations) and cleaning preparations, whether or not containing soap, other than those of heading 3401:

Preparations put up for retail sale:

Other.

Note 4 to Chapter 33, HTSUS, provides:

The expression “perfumery cosmetic or toilet preparations” in heading 3307 applies inter alia, to the following products: scented sachets; odoriferous preparation which operate by burning; perfumed papers and papers impregnated or coated with cosmetics; contact lens or artificial eye solutions, wadding, felt and nonwovens, impregnated, coated or covered with perfume or cosmetics; animal toilet preparations.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s 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 Harmonized System. Customs and Border Protection (CBP) believes the EN’s should always be consulted. See T.D. 8980, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

EN 33.07 states in relevant part:

This heading covers: other products such as:

(6) Animal toilet preparations, such as dog shampoos and plumage- improving washes for birds.

EN 34.02 states in relevant part:

This group comprises three categories of preparation:

Cleaning or de-greasing preparations, not having a basis of soap or other organic surface-active agents.

(ii) Degreasing or cleaning preparation, used e.g., in dairies or breweries, and with a basis of :
alkaline substances such as sodium carbonate or caustic soda or
solvents and emulsifiers.

This group of products may contain small quantities of soap or other surface-active agents.

This heading does not cover :

Shampoos or preparation for foam baths, whether or not containing soap or other surface-active agents (Chapter 33).

Based on Note 4 to Chapter 33, HTSUS, which indicates that animal toilet preparation are classified in heading 3307, HTSUS, CBP has issued several previous rulings that held that products used in animal care and hygiene were classified in heading 3307, HTSUS.

In NY K84007 dated March 17, 2004, CBP considered the classification of a pet care product known as the Leba III Dental Spray. The product was packed for retail sale in a spray bottle and was indicated for use in maintaining and cleaning teeth and providing dental hygiene for dogs and cats. CBP determined that the Leba III Dental Spray was properly classified under subheading 3307.90.00, HTSUS.

In NY I84436 dated August 12, 2002, the classification of a product known as Musher’s Secreta pet care product which was composed of beeswax, paraffin wax, candelila wax and paraffin oil was considered. It was designed to protect the feet, pads or hooves of domestic animals.  CBP determined that the Musher’s Secret was properly classified under subheading 3307.90.00, HTSUS.

In NY I83220 dated July 1, 2002, CBP reviewed the classification of several pet care products. The first product was a Skin Relief Spray, composed of distilled water, aloe vera gel, tea tree oil and apricot kernel oil. It was a multi-purpose skin care product used to relieve itching, soothe and dehydrate dry skin, and control odors and bacteria. The item was packed for retail sale in an 8-ounce plastic spray pump bottle. A second item under consideration in NY I83220 was the Paw Rescue Spray, composed of distilled water, aloe vera gel, tea tree oil, jojoba oil and friar’s balsam (benzoin). It was used to soothe, condition and soften rough, dry pads and nails. A third product under consideration was the Invisible Boot, composed of soybean oil, cottonseed oil, tea tree oil, beeswax, cornstarch, fullers earth and friar’s balsam (benzoin). It was a skin care product used to protect paws from all types of weather conditions. The item was packed for retail sale in a 4-ounce plastic jar. Finally, in the same ruling, CBP considered a fourth product called Pet Shade, a sunscreen used to screen out the sun’s harmful UV rays. The product could be applied to the nose, ear tips and exposed flesh, and there was also an 8-ounce spray-on lotion that could be applied to the fur. CBP determined that the Skin Relief Spray, Paw Rescue Spray, Invisible Boot and Pet Shade were classified under subheading 3307.90.00, HTSUS.

We note that the animal care products involved in these rulings were not intended merely just to beautify animals or to make them smell better. They were animal hygiene care products used in the care of animals to help prevent conditions that could impair an animal’s health and wellbeing. Based on Note 4, Chapter 33, HTSUS, and the language of the ENs, these products were all classified in heading 3307, HTSUS, as animal toilet preparations. In this instance, Hoofsure is also an animal hygiene product that is intended to help prevent certain hoof conditions that could seriously impair an animal’s health.

As referred to previously, Note 4 to Chapter 33 indicates that animal toilet preparations are classified in heading 3307, HTSUS. Thus, in classifying Hoofsure, we must consider if it is an animal toilet preparation. EN 33.07 indicates that dog shampoos and plumage improving washes for birds are examples of products that are considered to be animal toilet preparations.

We recognize that Hoofsure is an animal hygiene product that is used through its application on animals. It is used to clean, maintain, condition and care for the hooves of cattle and sheep. In this way, it is similar to dog shampoos that are used to clean and care for a dog’s coat, fur, and skin and bird plumage wash that is used to care for a bird’s feathers. Therefore, because it is used in the maintenance and care of parts of a farm animal’s anatomy, the hooves, we conclude that Hoofsure should be considered as an animal toilet preparation. Consequently, it is similar to the products described in K84007, NY I83220, and NY I84436. Although Hoofsure will not be used as a treatment or a remedy for any condition or disease on a specific animal, it is still a product used as a part of a maintenance program to help prevent potential conditions that could be harmful to animals. Most significantly, it is used as an aid in the care of animals and not in the care of the facilities that house or surround animals.

Protestant argues that Hoofsure should be classified in heading 3402, HTSUS, as an organic surface-active agent cleaning preparation. According to Protestant, Hoofsure meets the terms of Note 3 to Chapter 34, HTSUS, for “organic surface-active agents” because it contains organic acids and when it is mixed with water at a concentration of 0.5% at 20 degrees C and left to stand for one hour, it (a) gives a stable emulsion without separation of insoluble matter, and (b) it reduces the surface tension of water to 4.5 x10־² N/m (45 dyne/cm) or less. We understand, however, that surface-active agents are contained in many different products. According to the web site Wikipedia.com, surface-active agents (also referred to as Surfactants) play an important role in many practical applications and products including: detergents, emulsifiers, paints, adhesives, inks, alveoli, wetting, ski wax, snowboard wax, foaming, defoaming, laxatives, herbicides, insecticides, and quantum dot coating. Thus, it is apparent that all products that contain or have the properties of organic surface-active agents should not be automatically classified in heading 3402, HTSUS. For example, Note 1(c) to Chapter 34, HTSUS, indicates that shampoos, dentifrices, shaving creams and foams and bath preparations containing soap or other organic surface-active agents (heading 3305, 3306 or 3307) are excluded from being classified in Chapter 34, HTSUS. Heading 3402, HTSUS, covers products that are primarily intended for washing and cleaning. Although Hoofsure does help in keeping animal hooves clean, that is only part of its function. Based on the product literature, we note that Hoofsure is also used to soften and condition animal hooves, and thereby it makes animal hooves less susceptible to cracks and splits where bacteria could become established. Additionally, it contains antibacterial/disinfecting agents that help prevent infections of an animal’s hooves. Thus, we find that as an animal hygiene product, Hoofsure should be considered as an “animal toilet preparation” that is used in the care and maintenance of the hooves of cattle and sheep. Consequently, we find that it is not classified as a cleaning preparation in heading 3402, HTSUS.

Protestant cites NY D89308 dated May 17,1999, which concerned a product called the “Destroyer Plus", a cleaning agent used in hatchery facilities and hen houses for treating bedding material, watering troughs, and feed troughs. The product was also be used to disinfect tractor cabs and chicken transport trailers. The ingredients in the product were glycerin USP, N-alkyl C12C16 benzyl dimethyl ammonium chloride, isopropyl alcohol, citric acid, grapefruit essential oils and oleoresins, water, and ascorbic acid. In this ruling, CBP determined that the "Destroyer Plus" if imported in bulk, was classified in subheading 3402.90.3000, HTSUS, as an organic surface-active agent (other than soap); surface-active preparation, washing preparationother, other, containing any aromatic or modified aromatic surface-active agent.

However, the product considered in NY D89308, the Destroyer Plus, is distinguishable from the product under review in this case, Hoofsure. Destroyer Plus was intended for use as a cleaning agent in disinfecting facilities that house animals, such as a hatchery or a hen house, but it was not intended for use in the direct application upon animals. Because it was basically a cleaning product, it was classified in heading 3402, HTSUS. In contrast, Hoofsure is placed in a footbath through which cattle and sheep walk. This means that the Hoofsure is used in the care of animals through its application directly on the animals. It is not intended for use to clean the walkway used by cattle and sheep. In other words, the Hoofsure is not meant for cleaning or disinfecting animal facilities. Therefore, based on the application of Note 4 to Chapter 33, HTSUS, and NY K84007, NY I84436, and NY I83220 we find that Hoofsure is classified in heading 3307, HTSUS as: Pre-shave, shaving or after-shave preparations, personal deodorants, bath preparations, depilatories, and other perfumerywhether or not perfumed or having disinfectant properties as an animal toilet preparation.

HOLDING:

Pursuant to GRI 1, in accordance with Note 4 to Chapter 33, Hoofsure is classified in classified in heading 3307, HTSUS, as an animal toilet preparation. It is specifically provided for in subheading 3307.90.0000 HTSUSA, as: “Pre-shave, shaving or after-shave preparations, personal deodorants, bath preparations, depilatories, and other perfumery, cosmetic or toilet preparations, not elsewhere specified or included; prepared room deodorizers, whether or not perfumed or having disinfectant properties: Other” at a column one, general rate of duty of 5.4 percent ad valorem. Duty rates are provided for the importer’s convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts.

Therefore, the protest and application for further review should be denied in full. In accordance with the Protest/Petition Processing Handbook, (CIS HB, January 2002, pp 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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