HQ 953888: Request for Further Review of Protest 3004-92-100164, Dated October 20,1992, Concerning a Product Described as Barley Screenings

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 953888

                               October 12, 1993                   

CLA-2 CO:R:C:F  953888  ALS

CATEGORY:  Classification

TARIFF NO.:  1003.00.4000

District Director of Customs
1000 2nd Ave.
Room 2200
Seattle, WA 98104

RE:  Request for Further Review of Protest 3004-92-100164, Dated  October 20,
1992, Concerning a Product Described as Barley  Screenings

Dear Mr. Holland;

      This ruling is on a protest that was filed against your decision of October
16, 1992, in the liquidation of an entry covering the referenced product.

FACTS:

      The product is described as a #3 barley and as a by-product or screening
that is left over after good malting barley has been screened out.  The product
is said to be unacceptable for malting purposes or for rolling at the feed mill
level and that it can only be ground for feeding purposes.

ISSUE:

      Is the subject product classifiable as barley or a barley screening?

LAW AND ANALYSIS:

      Classification of merchandise under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA) is governed by  - 2 -

the General Rules of Interpretation (GRI's) taken in order.  
GRI 1 provides that the classification is determined first in accordance with
the terms of the heading and any relative section and chapter notes.  If GRI 1
fails to classify the goods and if the heading and legal notes do not otherwise
require, the remaining GRI's are applied, taken in order.

      We considered whether the product should be considered as a residue or
other by-product of the sifting, milling or other working of cereals or
leguminous plants and, therefore, classifiable in subheading 2302.40.00, HTSUSA,
as claimed by the importer, or in subheading 1003.00.4000, HTSUSA, as barley,
other, in accordance with the liquidation decision.

      Pursuant to section 12.16 of the Customs Regulations 
(19 CFR 12.16), imports of agricultural and vegetable seeds and screenings
thereof are governed by the rules and regulations prescribed under section 402(b)
of the Federal Seed Act of August 9, 1939 (7 CFR part 201).  Within the Federal
Seed Act, the term "screening" is defined:

      "[S]creenings" shall include chaff, sterile, florets, immature seed, weed
seed, inert matter, and any other materials removed in any way from any seed in
any kind of cleaning or processing and which contain less than 25 per centum of
live agricultural or vegetable seeds.

      A definition of barley found in the Department of Agriculture Regulations
(7 CFR 201.204) which set forth the provisions for the "Official United States
Standards for Grain" specifies:

      Grain that, before the removal of dockage, consists of 
      50 percent or more of whole kernels of cultivated barley (Hordeum vulgare
L.) and not more than 25 percent of other grains for which standards have been
established under the United States Grain Standards Act.  The term 'barley' as
used in these standards does not include hull-less barley or black barley.

      The above provisions from sources other than the Federal Seed Act are not
binding but are utilized as guidance.

      In regard to the composition of the above barley product we note that the
California Department of Food and Agriculture examined the barley in question
and found that it consisted of       - 3 -

87 percent pure seed, 90 percent of which germinated.  No black barley was found
and only about 0.7 percent was hull-less.

      Based on the above empirical evidence and the referenced regulations, we
have concluded that the instant product should be classified as barley, other.

HOLDINGS:

      Barley which does not meet the definition of barley screenings in the
Federal Seed Act and is not usable as barley for malting purposes is classifiable
as barley in subheading 1003.00.4000, HTSUSA, and is subject to a general rate
of duty of .34 cents per kilogram.

      Barley, the product of Canada, is, in accordance with General Note
3(c)(vii)(B), HTSUSA, eligible for a special rate of duty of .1 cent per
kilogram, upon compliance with the provisions of the United States - Canada Free
Trade Agreement (CFTA) and section 10.301 et seq., Customs Regulations (19 CFR
10.301 et seq.).

      Since the classification indicated above is the same as the classification
under which the entry was liquidated, you are instructed to deny the protest in
full. 

      A copy of this ruling should be attached to Customs Form 19 and provided
to the protestant as part of the notice of action on the protest.

      In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065,
dated August 4, 1993, Subject: Revised Protest Directive, this decision should
be provided by your office to the protestant no later than 60 days from the date
of this letter.  Any reliquidation of the entry in accordance with the decision
must be accomplished prior thereto.  Sixty days from the date of the decision
the Office of Regulations and Rulings will take steps to make the decision
available to Customs personnel via the Customs Rulings Module in ACS and public
via the Diskette Subscription Service, Lexis, Freedom of Information Act and
other public access channels.

                                    Sincerely,



                                    John Durant, Director
                                    Commercial Rulings Division