CLA-2 CO:R:C:F 088701 ALS
District Director of Customs
610 South Canal Street
Chicago, Illinois 60607
RE: Modification of Headquarters Ruling Letter (HRL) 088165,
Issued in Response to Internal Advice Request (IA) 66/90,
Regarding the Classification of Dog and Cat Treats, Snacks
and Biscuits
Dear Mr. Roster:
This is in further regard to the referenced ruling. That
ruling held that bulk shipments of dog and cat treats which meet
the definition for mixed feeds and mixed feed ingredients in
Additional U.S. Note 1 to Chapter 23, Harmonized Tariff Schedule
of the United States Annotated (HTSUSA), are classifiable in
subheading 2309.90.90, HTSUSA.
Based on our reconsideration of HRL 088165, we now believe
that holding was partially incorrect and should be modified. This
modification is issued to clarify the distinction between "dog and
cat food, put up for retail sale" (subheading 2309.10.00, HTSUSA)
and other "preparations of a kind used in animal feeding"
(subheading 2309.90.10, HTSUSA). Specifically, the modification
clarifies when such products are considered to be mixed feeds or
mixed feed ingredients and when they, particularly dog and cat
food, are considered to be put up for retail sale.
Pursuant to the aforementioned U.S. Note, read in conjunction
with subheading 9903.23.35, HTSUSA, dog and cat food preparations
which contain not less than 6 percent by weight of grains or grain
products, are mixed feeds or mixed feed - 2 -
ingredients and come within the scope of subheading 2309.10.00,
HTSUSA, if put up for retail sale and within the scope of
subheading 2309.90.10, HTSUSA, when not put up for retail sale.
This leaves open the question as to whether cartons weighing
22 and 27.5 pounds, containing the dog and cat treats which consist
of not less than 6 percent by weight of grains or grain products,
are bulk packages or are considered packages put up for retail
sale. In this regard, we note that the subject treats have been
imported in two varieties of cartons. During the period from
January 1989 until July 1990, a certain type of import cartons of
the above capacities was utilized. Such cartons were marked with
the name of the product, a list of ingredients, including a
percentage analysis and vitamin content, a feeding guide, the name
of the distributor, the name of the exporter and country of origin.
Weigh out bags, either plain or with information as to product
brand and content, were randomly included. A header card which
identified the product, which noted that it was a flavored snack
and was "The filled biscuit dogs prefer" was also included in the
each carton.
Since approximately September, 1990, the importer has imported
the treats in "plain brown" cartons, of the same capacities as
previously noted, marked with the country of origin and minimal
other information. Subsequent to importation the contents of these
cartons are repacked into retail containers with all the
appropriate markings, according to counsel.
HRL 088165 stated that the treats imported in these "plain brown"
cartons were bulk shipments. We agree with that conclusion and
that such treats are not classifiable under subheading 2309.10.00,
HTSUSA. That ruling held that such bulk shipments were
classifiable in subheading 2309.90.90, HTSUSA. Since, however, dog
and cat treats which are composed of not less than 6 percent by
weight of grains or grain products are considered mixed feeds or
mixed feed ingredients, HRL 088165 should have referenced
subheading 2309.90.10, HTSUSA, if they are imported in bulk.
HRL 088165 did not deal with import cartons of the type
utilized between January 1989 and July 1990. Counsel believes that
such containers should also be considered bulk shipments. In
considering the question as to whether the cartons utilized until
July 1990 are bulk shipments, we note, as previously stated, that
such cartons contained a significant amount of information in
addition to that contained on the current "plain brown" cartons.
We believe that this information, e.g., ingredients, percentage
analysis, feeding guide, is information - 3 -
directed at the retail consumer. The importer, particularly one
who is an exclusive distributor as in this case, would be aware of
this information before ordering the product and it need not appear
on the carton for the distributor's benefit. It may be the retail
consumer's basis for ordering the product vis a vis another
product. In this regard, we note that such information has been
absent from the import cartons since September 1990.
Although the import cartons contains a sizeable quantity of
the product we do not believe that is conclusive as to the intended
disposition of the product. We note that dog food may normally be
purchased at the retail level in 40 pound bags. We understand that
the subject treats, although normally sold in a smaller quantity,
have been available for retail purchase in their import cartons.
While the subject product is to be used as a treat, not as a meal
food, and presumably consumed at a lower rate, we do not believe
this conclusively confirms that such import cartons are not
intended for the retail purchaser in light of the previously
referenced items which seem to indicate that it is intended for the
retail consumer. Accordingly, we believe that a carton such as
that utilized by the supplier until
July 1990, is a retail package and that treats imported therein
are put up for retail sale and are, therefore, classifiable in
subheading 2309.10.00, HTSUSA, (see HRL 950326, dated March 19,
1992). Such articles, if the product of the European Economic
Community, as in this case, are classifiable under the provisions
of subheading 9903.23.35, HTSUSA, and subject to a general rate of
duty of 100 percent ad valorem.
A question remains as to products, such as Smackos and
Kitstrips, which consist of less than 6 percent by weight of grains
or grain products. We have concluded that such products fail to
meet the definition for mixed feeds or mixed feed ingredients and
are, therefore, not classifiable in subheading 2309.10.00 or
2309.90.10, HTSUSA. Such products are classifiable in subheading
2309.90.90, HTSUSA, as preparations of a kind used for animal
feeding, other, other, other, other. Since this subheading does
not specify that it is limited to products packaged in a particular
manner, products might be classified thereunder regardless of the
type of package in which they are imported.
In summary, dog and cat treats containing not less than 6
percent by weight of grains or grain products, other than those
containing milk or milk derivatives, which are imported in small - 4 -
packages or in large packages which have information imprinted
thereon which is directed toward the retail consumer are considered
retail packages and are classifiable in subheading 2309.10.00,
HTSUSA. Such articles are subject to a free general rate of duty
unless they are the product of a country belonging to the European
Economic Community, in which case they are classifiable in
subheading 9903.23.35, HTSUSA, and subject to a general rate of
duty of 100 percent ad valorem. Such articles, if imported in
"plain brown" cartons, as previously described, are considered bulk
shipments and are classifiable in subheading 2309.90.10, HTSUSA,
and subject to a free general rate of duty (see HRL 951477, dated
May 1, 1992). Dog and cat treats containing less than 6 percent
by weight of grains or grain products, whether imported in bulk or
in retail packages, are classifiable in subheading 2309.90.90,
HTSUSA, and subject to a general rate of duty of 3 per cent ad
valorem.
HRL 088165 is accordingly modified.
Sincerely,
John Durant, Director
Commercial Rulings Division