CLA-2-CO:R:C:F 954921 K
TARIFF No.: 2309.90.10
James S. O'Kelly, Esq.
Leonard Lehman, Esq.
Alan Goggins, Esq.
Barnes, Richardson & Colburn
475 Park Avenue South
New York, New York 10016
RE: Revocation of Headquarters Ruling Letters (HRL) 952172 And
952338; Mixed Feeds And Mixed-Feed Ingredients
Dear Sirs:
In your letter of August 26, 1993, you asked us to reconsider
our decisions in HRL 952172, and 952338, dated November 18, 1992.
We have reviewed those decisions and agree that they are in error.
The correct classification follows.
FACTS:
The merchandise in HRL 952172, dated November 18, 1992, was
identified as Calpan 80 Premix containing 53.0 percent of rice
hulls or cob meal or wheat middlings, Calpan 160 Premix containing
40.0 percent of rice hulls or cob meal or wheat middlings, and
Riboflavin 60 Premix containing 53.0 percent of rice hulls or cob
meal or wheat middlings. The merchandise in HRL 952338, dated
November 18, 1992, was identified as Premix 50R containing 18.43
percent of rice hulls or cob meal. Each of the identified premixes
contained several nutrients or feedstuffs.
While each of the premixes contains over 6 percent by weight
of grains or grain products, each premix had only one grain
product. Accordingly, in interpreting Additional U.S. Note 1,
Chapter 23, Harmonized Tariff Schedule of the United States
(HTSUS), we concluded that each premix was not classified as mixed
feeds or mixed feed ingredients, subheading 2309.90.10, free of
duty but as other preparations of a kind used in animal feeding
under subheading 2309.90.90, with duty at 3 percent ad valorem.
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We have been requested to reverse our position on the basis
that the Additional U.S. Note 1 does not require the presence of
two or more types of grains or grain products.
ISSUE:
The issue is the interpretation of Additional U.S. Note 1,
Chapter 23, HTSUS, and whether the note requires that "mixed feeds
and mixed-feed ingredients" that are classifiable in subheading
2309.90.10, must contain a mixture of two or more types of grains
or grain products.
LAW AND ANALYSIS:
Subheading 2309.90.10 provides for preparations of a kind used
in animal feeding: Other: Mixed feeds or mixed feed ingredients,
free of duty. The Additional U.S. Note 1 (Note 1), Chapter 23,
states as follows.
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.
The decision of the U.S. Court of International Trade, Vitek
Supply Co., v. U.S., Slip Op. 93-19, decided February 5, 1993, is
cited to support the position that Note 1 does not require a
mixture of two or more types of grains or grain products. In that
case, the merchandise concerned the classification of a product
known as Veal Premix that contained six percent by weight of one
grain product, that is, pre-gelatinized corn starch, which was
mixed with vitamins and minerals. The two competing provisions in
the tariff were also subheadings 2309.90.10 and 2309.90.90. The
court noted that the parties agreed that the first requirement of
Note 1 was met which required that the Veal Premix (which contained
pre-gelatinized corn starch, a single type of grain product) must
be a preparation used in animal feeding and must be at least six
percent by weight of grain or a grain product. The second
requirement of Note 1 was at issue as to whether the vitamins and
minerals, which, if not incorporated into the mixture, could also
be sold for human consumption, were feedstuffs for purposes of Note
1. The court ruled that they were and that the product was
classified in subheading 2309.90.10. Once the vitamins and
minerals which could be used for human consumption were
incorporated into the Veal Premix, an animal food, they were not
for human consumption.
We conclude that a preparation of a kind used in animal
feeding that consists of an admixture of (one or more) grains or
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grain products with feedstuffs and the admixture consists of not
less than 6 percent by weight of grain or grain products, meets
the term "mixed feeds and mixed-feed ingredients".
HOLDING:
The term "mixed feeds and mixed-feed ingredients", as defined
in Additional U.S. Note 1, Chapter 23, HTSUS, does not require that
the admixture must contain two or more types of grains or grain
products.
The premixes described under the above facts and in HRL 952172
and HRL 952338, dated November 18, 1992, are properly classified
as preparations of a kind used in animal feeding: Other: Mixed
feeds or mixed feed ingredients, in subheading 2309.90.10, HTSUS,
free of duty.
HRL 952172 and HRL 952338 are revoked.
Sincerely,
John Durant, Director
Commercial Rulings Division