HQ 083649: Classification of a "Milky Dog Bone"

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 083649

                        December 19, 1989

CLA-2 CO:R:C:G 083649  WAW

CATEGORY:  Classification

TARIFF NO.:  2309.90.3000

Mr. W.M. Neubauer
Lex-Pet
3003 G Park Central Avenue
Nicholasville, KY  40356

RE:  Classification of a "Milky Dog Bone"

Dear Mr. Neubauer:

     This ruling is in response to your letter of March 20, 1989,
on behalf of Sunrise Corporation, requesting the classification
of a "Milky Dog Bone" under the Harmonized Tariff Schedule of the
United States Annotated (hereinafter HTSUSA).

FACTS:

     The subject merchandise is a hardened milk dog bone.  The
bone consists of the following ingredients:

     lactic casein:  80%
     edible gelatin: 20%
     protein:        more than 64%
     fat:            more than 1%
     ash:            less than 17%
     moisture:       less than 13%
     fiber:          0%

The bone is primarily made of milk and is 100% digestible by a
dog.  It is high in protein and vitamin E enriched.  It is
available in assorted sizes and shapes and comes in both hard and
soft styles.  This item will be imported from Japan.

ISSUE:

     What is the proper classification of a "Milky Dog Bone"
under the Harmonized Tariff Schedule of the United States?

LAW AND ANALYSIS:

     The General Rules of Interpretation (GRI's) set forth the
manner in which merchandise is to be classified under the HTSUSA.
GRI 1 requires that classification be determined first according
to the terms of the headings of the tariff and any relative
section or chapter notes and, unless otherwise required,
according to the remaining GRI's, taken in order.

     Heading 2309 provides the most specific description of the
merchandise in question.  This heading covers "preparations of a
kind used in animal feeding: dog or cat food, put up for retail
sale."  Since the subject merchandise is a hardened bone made of
milk intended to be given to dogs as a snack, it is properly
classifiable under this heading.  Accordingly, once the item is
classified under a particular heading, determination of the
particular subheading is controlled by the composition of the
good in question.  Classification of the dog bone falls under
subheading 2309.90.3000, HTSUSA, covering "other: animal feeds
containing milk or milk derivatives," because it clearly is not
covered by the preceding subheading which covers "mixed feeds or
mixed feed ingredients."

     Moreover, the Legal Note to Chapter 23 provides the
following:

     "Heading 2309 includes products of a kind used in
     animal feeding, not elsewhere specified or included,
     obtained by processing vegetable or animal materials to
     such an extent that they have lost the essential
     characteristics of the original material, other than
     vegetable waste, vegetable residues and byproducts of
     such processing."

     In the instant case, it is apparent that the milk which is
the primary ingredient in the dog bone, has been processed to
such an extent that it has lost the essential character of milk
in its natural form. In addition, although these bones may be
used to exercise a dog's jaws and to clean tartar from a dog's
teeth, they also provide a nutritional supplement for the dog.
Thus, based on the foregoing analysis, it is Customs position
that classification of the milk dog bones in this case is proper
under subheading 2309.90.3000, HTSUSA, which provides for
"preparations of a kind used in animal feeding: other: animal
feeds containing milk or milk derivatives."

HOLDING:

     The milk dog bone at issue is classifiable under the
provision for preparations of a kind used in animal feeding in
subheading 2309.90.3000, HTSUSA, dutiable at 7.5 percent ad
valorem.

                                   Sincerely,




                                   John Durant, Director
                                   Commercial Rulings Division