HQ 953340: Reconsideration of New York Ruling Letter (NYRL) 872561

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                              HQ 953340
                              June 4, 1993


CLA-2 CO:R:C:F  953340  JGH

CATEGORY: Classification

TARIFF NO.: 1701.99.0135/1701.99.0235

Mr. Alfred Saroni Jr.
ABWD, Inc.
P.O. Box 8305
Emeryville, California  94608

RE: Reconsideration of New York Ruling Letter (NYRL) 872561

Dear Mr. Saroni:

     Your letter of December 17, 1992, concerns the
classification of a "Sweetened Forage" from Canada.  This product
was the subject of NYRL 872561 (dated April 6, 1992), in which it
was classified as sugar in subheading 1701.99.0125, Harmonized
Tariff Schedule of the United States (HTSUS) or 1701.99.0225,
HTSUS, depending on quota status.  It was further subject to the
sugar fees of 9904.40.20, HTSUS.  Effective January 1, 1993,
these subheadings were changed to 1701.99.0135 and 1701.99.0235,
HTSUS.

FACTS:

     It is now contended that the imported product is a feed
preparation of a type classifiable in subheading 2309.90.10,
HTSUS.  It is composed of about 83 percent sugar, 15 percent corn
and 2 percent ground limestone, and is described as a basic
initial formulation, not generally used by itself but blended
with other ingredients to make various formulations for the
better nutrition of young pigs.

     A statement from International Distributing Corporation,
which was said to be a potential purchaser of "Sweetened Forage,"
described the import as an ingredient in a pig starter feed; it
would be blended with other feed ingredients to make a complete
ration.  A feed starter with 15 percent sugar is said to be
commonly used in the feed industry. - 2 -

     A statement from a Canadian laboratory is to the effect that
the imported product has about 83 percent sugar, 12 percent corn,
and 2 percent limestone.  The corn is said to provide nutrition,
the limestone to aid digestion, and the sugar, the main source of
carbohydrate, intended to meet the specific energy requirements
of young pigs.  It is added that the preparation of the product
would not meet the standards for human food, especially because
of the presence of limestone.  A copy of an article from The Wall
Street Journal concerned the studies made on the calming effect
of sugar on babies.

ISSUE:

     Classification of a sugar mixture used in animal feed
formulations under subheading 2309.90.10, HTSUS, as other mixed
feed or mixed feed ingredients.

LAW AND ANALYSIS:

     It is alleged that the Explanatory Notes (ENs) provide
specifically for "Sweetened Forage" as well as preparations for
use in making complete feeds in Heading 2309, HTSUS.  The ENs
describe "Sweetened Forage" as a mixture of molasses or other
similar sweetening substances (generally more than 10 percent by
weight) with one or more other nutrients, usually used for
feeding cattle, sheep, horses or pigs.  The ENs go on to state
that as a rule, the sweetened preparations are fed directly to
the animals; but adds that some of the preparations combine
molasses with highly nutritive foods to make complete foods or
supplementary feeds.  The sweetened products described by the ENs
are distinguishable from the imported sugar mixture in question. 
The imported mixture with its high sugar content is not fed
directly to animals.  Furthermore, molasses is, of course, not
sugar but a byproduct left after the sucrose is removed from the
cane; usually it has a sucrose content of only 30 percent.  There
is no evidence that a product like the import which is
essentially sugar would be considered by the ENs to be a
"Sweetened Forage" as imported.

     The ENs go on to state that the provision also provides for
preparations known in the trade as "premixes", which are,
generally speaking, said to be compositions consisting of a
number of substances (sometimes called additives) which vary
according to the animal production required.  The types described
were:

     (1) Those which improve digestion and ensure that the animal
         makes good use of the feeds and safeguard its health:   
         vitamins, amino acids, antibiotics,flavorings and       
         appetizers.          - 3 -

     (2) Those designed to preserve the feeding stuffs until     
         consumption: stabilizers, antioxidants.

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

     The imported product fits neither the EN definition of
"Sweetened Forage" nor that for preparations for use in making
complete feeds or supplementary feeds; nor does it come under the
definition of "mixed feeds and mixed-feed ingredients" of U.S.
Note 1, Chapter 23, HTSUS, as it is not "prepared".  As imported
the merchandise is essentially sugar; it is not a feed or a feed
preparation (as described above) but a sugar source for use in
the production of a finished product.  Under the General Rules of
Interpretation (GRIs), GRI 3(b) applies to mixtures of different
materials or made up of different components which can not be
classified  by reference to relative specificity and, therefore,
are classified as if they consisted of the component which gives
them their essential character.  In this case, the import's
essential character is its sugar content. 

HOLDING:

     The imported sugar mixture is classifiable as sugar in
subheading 1701.99.0135 or 1701.99.0235, HTSUS, as entered
pursuant to the provisions of U.S. Note 3, Chapter 17, HTSUS, and
subject to the fees of subheading 9904.40.20, HTSUS.

    NYRL 872561 affirmed.

                              Sincerely,




                              John Durant, Director