HQ 084527: Classification of a Milk-Based Feed Supplement

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 084527

                          June 5, 1989


CLA-2 CO:R:C:G 084527 CB

CATEGORY: Classification

TARIFF NO.: 2309.90.3000

James G. Meagley, Esq.
Phillips, Lytle, Hitchcock, Blaine & Huber
3400 Marine Midland Center
Buffalo, New York 14203

RE: Classification  of a Milk-Based Feed Supplement

Dear Mr. Meagley:

     This ruling letter is in response to your inquiry of April
12, 1989, on behalf of Grober, Inc., requesting a classfication
ruling under the Harmonized Tariff Schedule of the United States
(HTSUSA), for a milk-based feed supplement.

FACTS:

     The merchandise is a premix which is used in the production
of two animal feeds.  The imported premix is a combination of
whey protein concentrate, soya flour, animal fat, and vitamins
and minerals.  The premix must be further processed in the United
States with powdered skim milk and whey powder in order to
produce a complete nutritionally balanced animal feed which can
be feed to young animals.

ISSUE:

     Whether the instant product is classified as an animal feed
containing milk or milk derivatives under 2309.90.3000.

LAW AND ANALYSIS:

     Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI's), taken in
order.  GRI 1 states, in part, that "classification shall be
determined according to the terms of the headings and any
relative Section or Chapter Notes...."  In applying GRI 1, GRI
2(a) provides that "[a]ny reference in a heading to an article
shall be taken to include a reference to that article
incomplete or unfinished, provided that, as presented, the
incomplete or unfinished article has the essential character 
of the complete or finished article."
 
                               -2-


     Chapter 23, HTSUSA, provides for prepared animal feed.  The
Explanatory Notes to Chapter 23, HTSUSA, although not legally
binding provide some guidance as to interpreting this
provision.  The Notes state that 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.  Subheading 2309.90.3000 applies to preparations
of a kind used in animal feeds containing milk or milk
derivatives.

     The merchandise at issue consists of : 36.5% whey protein
concentrate, 30.5% soya flour, 30% animal fat, and 3% vitamins
and minerals.  In our opinion, the merchandise, to which a
more than equal volume of whey powder and skim milk 
concentrate will be added after importation to make a finished
animal feed, nevertheless has the essential character of the
finished animal feed at the time of importation and, pursuant 
to GRI 2(a), HTSUSA, is subject to classification as if 
finished.  Inasmuch as the imported article contains milk or
milk derivatives (the whey protein concentrate), subheading
2309.90.3000, HTSUSA, applies.  Imports classified under
subheading 2390.90.3000 are subject to quota restrictions 
under subheading 9904.10.69.

     Heading 9904.10 provides that whenever in any 12 month
period beginning January 1 in any year, the respective
aggregate quantity specified for one of the numbered classes 
of articles has been entered, no article in such class may be
entered during the remainder of such period.  Subheading
9904.10.69 provides that animal feeds containing milk or milk
derivatives, classified under subheading 2309.90.30,
originating in countries other than Ireland, the United
Kingdom, New Zealand, or Australia, have an import quota of
zero and therefore cannot be imported into the United States.

HOLDING:

     The premix is classifiable under subheading 2309.90.3000,
HTSUSA, which provides for animal feed containing milk or milk
derivatives, and is subject to quota restrictions under

                               -3-


subheading 9904.10.69.  Canada does not have an import quota
allotment and therefore the merchandise at issue cannot be 
imported into the United States.



                                Sincerely,



                                John Durant, Director
                                Commercial Rulings Division