HQ 951744: Dog Treats Made From Grains or Grain Products With Oils and Fats, Sugar, Vitamin or Mineral Premixes and Other Ingredients

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 951744

                         August 18, 1992

CLA-2 CO:R:C:F  951744  ALS

CATEGORY:  Classification

TARIFF NO.:  2309.90.10

Mr. Andrew R. Messinger
Vice President Marketing
Vitakraft Pet Products Company, Inc.
Chimney Rock Rd. 12E
Bound Brook, New Jersey 08805

RE:  Dog Treats Made From Grains or Grain Products With Oils and
     Fats, Sugar, Vitamin or Mineral Premixes and Other
     Ingredients

Dear Mr. Messinger:

     This is in reference to your April 1, 1992, letter to our
New York Seaport Area Office regarding 3 types of bite sized
baked treats for dogs of the composition noted above.  Your
request indicated that the treats would be imported in 55 pound
unprinted and untagged paper or plastic bags and repackaged for
retail sale subsequent to importation.  Your request, along with
samples of the bags, was referred to this office for further
consideration.  During a telephonic discussion on May 18, 1992,
with this office, regarding of crushability of dog treats
transported in large paper or plastic bags and the method the
product inside thereof would be identified without opening the
bag, you indicated that your merchandise would probably be
imported in 22 pound boxes.  

     On July 1, 1992, we received your letter of June 29, 1992,
with a medium-sized gray box containing no markings.  Your letter
indicated that the treats would be imported in such boxes with
only the following information printed thereon:

     *Printed Item Number (for example #23135)
     *"Manufactured in The Netherlands" (or Germany)
     *"Not For Retail Sale"

     Your letter indicated that each box would contain 10
kilograms of treats.
n                             - 2 -
FACTS:

     The ruling request covers 3 types of dog treats.  The dog
treats have the following composition:

     Item #23135 -  Wheat flour, meat and meat by-products,
     (Sandwich      sugar, oil and fat and mineral premix.
          Hearts)

     Item #23136 -  Ground wheat, sugar, soybean meal, bone meal,
     (Mini Bones)   palm oil, cracked wheat, whey products, carob
                    powder, skim milk powder, fishmeal, vitamin  
                    mineral premix, beef, beef glaze, cocoa      
                    powder, gelatin, food coloring and vitamin   
                    premix. 

     Item #23140 -  Wheat flour, meat and meat by-products,      
     (Raviolos)     sugar, oil and fat and mineral premix.

     The dog treats will be imported in boxes as described above
and repackaged in other containers annotated with information as
to ingredients, guaranteed analysis, descriptive names, net
weight, etc., subsequent to importation.

ISSUE:

     1.   Are dog treats, composed of grains or grain products
with oils and fats, sugar, vitamin or mineral premixes and other
ingredients, mixed feeds or mixed-feed ingredients consisting of
not less than 6 percent by weight of grain or grain products?

     2.   Are the products, imported in a plain gray box of 22
pound capacity, containing only information as to the item number
of its contents, country of origin thereof and a statement that
the contents are not for retail sale, considered to be put up for
retail sale?

LAW AND ANALYSIS:

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


     n                        - 3 -

     We first considered whether the products under consideration
were mixed feeds or mixed feed ingredients consisting of not less
than 6 percent by weight of grain or grain products.  According
to Additional U.S. Note 1 to Chapter 12, HTSUSA, such term
"embraces products...which are an admixture of grains (or
products, including byproducts, obtained in milling grains) with
molasses, oilcake, oil-cakemeal or feedstuff, and which consist
of not less than 6 percent by weight of grain or grain products." 
We note that each of the products contain admixture of wheat
flour, accounting for 48 to 76 percent of the product, and at
least one of the other items noted in the referenced Note.  We
thus believe that the products are mixed feeds or mixed-feed
ingredients as specified in the Note.   

     We next considered whether the products are dog food put up
for retail sale.  In Headquarters Ruling Letter (HRL) 086640,
dated June 12, 1990, we noted that the provision for food
includes both meals and snacks.

     Thus, the only issue remaining is whether the products are
packaged for retail sale.  In this regard we note that the
importer intends to repackage the contents of the imported
package in smaller containers which will be labelled to show the
ingredients, the guaranteed analysis, the descriptive names, net
weight, etc.  While we do not question the importer's intention
to repackage the products into small retail packages and not to
sell them in the boxes in which they are imported, we must
consider the products in their condition and as packaged at the
time of importation.  The importer's intention subsequent to
importation, while of assistance in making this determination, is
not governing.

     In examining the sample import carton we note that it is 
plain, light gray in color and that it does not contain any
printing.  When closed and sealed it will have approximate
dimensions of 11 inches by 15 inches by 11 1/2 inches.  According
to the importer the only difference between the sample carton and
the actual import carton will be that the latter will contain
printed information as to the item number, the country of
manufacture and a statement that the product is not for retail
sale.

     We believe that the information on the proposed import
carton is information directed at the importer/distributor and
not the retail consumer.  It merely identifies the contents of
each carton, where the product was made and that it is not for
retail sale.  It does not contain a list of ingredients, product
analysis or other information which would be directed at the
retail consumer.
n                             - 4 -

Accordingly, we believe that the products when packaged in the
above described container are not put up for retail sale.

HOLDING:

     The dog treats under consideration which consist of not less
than 6 percent by weight of grains or grain products fall within
the term mixed feeds and mixed feed ingredients as defined in
additional U.S. Note 1 of Chapter 23, HTSUSA.  Such products when
imported in a 22 pound box with information thereon which clearly
shows that it is directed at the wholesale importer/distributor
rather than the retail consumer and which is specifically
labelled "Not For Retail Sale" is not considered as put up for
retail sale.  Such products, so packaged, are classifiable under
subheading 2309.90.10, HTSUSA, and are subject to a free general
rate of duty.

     Importations of these products are subject to import
regulations administered by the U.S. Food and Drug
Administration.  Information requests regarding those regulations
may be addressed to:

          U.S. Food and Drug Administration
          Division of Regulatory Guidance
          HFF 314, 200 C Street, S. W.
          Washington, D.C. 20204

     The products may also be subject to the regulations of
various state agencies throughout the United States.  You may
wish to contact the appropriate agency in each jurisdiction. 

     Since the products which are the subject of this ruling will
be repackaged subsequent to importation, it will be necessary to
comply with the provisions of section 134.26, Customs Regulations
(19 CFR 134.26), particularly those related to submission of a
Certificate of Marking.

                              Sincerely,



                              John Durant, Director
                              Commercial Rulings Division