CLA-2-21:RR:NC:2:238 R01846
Mr. Paul Counts
Alltech, Inc.
3031 Catnip Hill Pike
Nicholasville, KY 40356
RE: The tariff classification of Sel-Plex™ Selenium Yeast from Serbia and Montenegro
Dear Mr. Counts:
In your letter dated April 25, 2005, you requested a tariff classification ruling.
The subject product, Selenium Yeast, is defined in 21 CFR § 593.920 (h)(1)
as “[a] dried, nonviable yeast (Saccharomyces cerevisiae) cultivated in a fed-batch fermentation which provides incremental amounts of cane molasses and selenium salts in a manner which minimizes the detrimental effects of selenium salts on the growth rate of the yeast and allows for optimal incorporation of inorganic selenium into cellular organic material. Residual inorganic selenium is eliminated in a rigorous washing process and must not exceed 2 percent of the total selenium content in the final selenium yeast product.” You indicate in your letter that “[t]he additive selenium yeast is added in complete feed for chickens, turkeys, swine, beef cattle, dairy cattle, sheep, goats and horses at a level not to exceed 0.3 part (sic) per million of selenium.”
You assert that the subject product should be classified within subheading 2309.90.1050, HTS, which provides for “Preparations of a kind used in animal feeding: Other: Mixed feeds or mixed feed ingredients: Other.” The Explanatory Notes to the Harmonized Commodity Description and Coding System (the HTS), which provide guidance in the interpretation of the individual headings of the Harmonized Tariff Schedule, state, with regard to heading 23.09, HTS, that “[t]his 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 farm-produced feed with organic or inorganic substances (supplementary feed; or (3) for use in making complete or supplementary feeds.” However, the subject product is a single nutritive ingredient - neither sweetened forage nor a prepared mixture of several nutritive ingredients. Accordingly, it is our determination that Selenium Yeast is not a feeding preparation of the kind described in heading 23.09, HTS.
Explanatory Note 21.02(A), Harmonized System Explanatory Notes, characterizes inactive yeasts, in pertinent part, as follows: “Inactive yeasts, obtained by drying, are generally brewery, distillery or bakers’ yeasts which have become insufficiently active for further use in those industries. They are used for human consumption (source of vitamin B) or for feeding animals” (emphasis added). Accordingly, it is our determination that, pursuant to Rule 1, General Rules of Interpretation, HTS, and Explanatory Note 21.02(A), Harmonized System Explanatory Notes, the applicable subheading for Sel-Plex™ Selenium Yeast will be 2102.20.6000, Harmonized Tariff Schedule of the United States (HTS), which provides for “Inactive yeasts; other single-cell microorganisms, dead: Other.” The rate of duty will be 3.2 percent ad valorem.
This merchandise may be subject to the requirements of the Federal Food, Drug, and Cosmetic Act, which are administered by the U.S. Food and Drug Administration. You may contact them at 5600 Fishers Lane, Rockville, Maryland 20857, telephone number 1-888-463-6332.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Harvey Kuperstein at 646-733-3033.
Sincerely,
Robert B. Swierupski
Director,
National Commodity
Specialist Division