HQ 956650: Request for Further Review of Protest 3901-93-102517, Dated December 14, 1993, Concerning Certain Cat Vitamin Treats

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 956650

                          March 23, 1995

CLA-2 CO:R:C:F  956650  ALS

CATEGORY:  Classification

TARIFF NO.: 2309.10.0090

District Director of Customs
610 S. Canal St.
Chicago, IL 60607

RE:  Request for Further Review of Protest 3901-93-102517, Dated
     December 14, 1993, Concerning Certain Cat Vitamin Treats

Dear Mr. Roster:

     This ruling is on a protest that was filed against your
decisions of September 17 and November 5, 1993, regarding 3
entries of cat vitamin treats from the Netherlands.

FACTS:

     The product under consideration are cat vitamin treats in
quantities of 100 tablets packaged for retail in other than air-
tight containers.  Entries for the product had been liquidated
under subheading 9903.23.35, Harmonized Tariff Schedule of the
United States Annotated (HTSUSA) which applies to merchandise
from a member country of the European Union (EU) which is
classifiable under subheading 2309.10.0010 or 2309.10.0090,
HTSUSA.  

ISSUE:

     Is subheading 9903.23.35, HTSUSA, applicable to the subject
product.

LAW AND ANALYSIS:

     Classification of merchandise under the 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                               - 2 -

section and chapter notes.  If GRI 1 fails to classify the goods
and if the headings and legal notes do not otherwise require, the
remaining GRI's are applied, taken in order.

     Both the importer and Customs agree that the primary
classification of the subject cat treats and that the merchandise
is a product of the EU.  There, however, is disagreement as to
whether the treats are "mixed feed and mixed-feed ingredients" as
specified in Additional U.S. Note 1 to Chapter 23, HTSUSA.  The
product would, pursuant to that note and in order to be subject
to the aforementioned Chapter 99 provision, have to consist of
not less than 6 percent by weight of grain or grain products.

     Multiple analyses of the products by a Customs laboratory 
generally indicated that the product contained in excess of 6
percent by weight of grain or grain products.  One such analysis
concluded that the product contained less than 6 percent by
weight of gain or grain products.  Presuming that the same
product was being analyzed in all instances, a question existed
as to a basic fact necessary for the proper classification of the
treats. 

     The importer, in connection with the filing of the instant
protest, submitted a detailed report from a Dutch laboratory
which analyzed a sample of the product from the same lot as that
covered by the subject entries.  The importer also submitted the
report of an independent private consultant analyzing the finding
of an independent U.S. laboratory which specializes in the
testing of foods and feeds.  These reports support the importer's
position that the product contains less than 6 percent by weight
of grains.

     Although we would normally rely solely on the findings of
the Customs laboratory, because of one of the findings by our lab
that the product may contain less than 6 percent by weight of
grain and the documentation submitted by the importer as to the
findings of two independent laboratories which conflict with the
Customs lab findings that the product generally contained in
excess of 6 percent by weight of grains, we referred all the
documents of record to the Headquarters laboratory for analysis
and evaluation.

     The Customs Headquarters laboratory analyzed the detailed
reports of the two private laboratories and noted that the
product is homogeneous and highly processed which makes
identification of its components quite difficult.  It noted that                               - 3 -

while prior Customs laboratory analyses which involved the acid
hydrolysis method or breakdown of starch into sugars was a valid
and time tested method of analysis, it noted that the extraction
process in such analysis removes all polysaccharides.  This is
significant since the product contains 3 non-starch
polysaccharides (glycogen, mannan and glucan) and their removal
may interfere with the analysis making the Customs laboratory
results not incorrect but rather inconclusive.  The inclusion of
results obtained by the hydrolysis of glycogen (animal starch)
with the vegetable starch from grains into the total percentage
of calculate grain, would produce some question as to the
validity of the analysis.  

     The Customs Headquarters laboratory, recognizing these
possible deficiencies, conducted an extensive analysis of the
information and documents submitted by the importer with its
protest.  Based thereon, it has advised us that the conclusion
suggested by the importer was reasonable and that we could rely
on the data supplied by the importer.  Accordingly, we find that
the instant product contains less than 6 percent by weight of
grain or grain products, that it is not a mixed feed or mixed-
feed ingredient as defined in Additional U.S. Note 1 to Chapter
23, HTSUSA, and that subheading 9903.23.35, HTSUSA, is,
therefore, inapplicable.

HOLDING:

     Cat treats in non air tight containers, which contain both
vegetable and animal starch, where the vegetable starch
component, indicating the presence of grain or grain products, is
less than 6 percent by weight, are classifiable in subheading
2309.10.0090, HTSUSA.  Products so classifiable are subject to a
free general rate of duty.  Subheading 9903.23.35, HTSUSA, is
inapplicable thereto.

     Since reclassification of the merchandise as indicated above
will result in the same rate of duty as claimed you are
instructed to allow the protest in full.

     A copy of this ruling should be attached to the 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 3553-065, dated August 4, 1993, Subject, Revised Protest
Directive, this decision should be provided by you office to the
protestant no later than 60 days from the date of this letter. 
Any reliquidation of the entries in accordance with this decision
                              - 4 -

must be accomplished prior to the mailing of the decision.  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 the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.

                              Sincerely,



                              John Durant, Director
                              Commercial Rulings Division