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HQ 086559

November 30, 1990
CLA-2 CO:R:C:G 086559 SLR


TARIFF NO.: 2309.90.3000; 9904.10.69

Sandra Liss Friedman, Esq.
Barnes, Richardson & Colburn
475 Park Avenue South
New York, NY 10016

RE: Animal Feed Fat Preparation from Canada

Dear Ms. Friedman:

This is in response to your inquiry of February 9, 1990, on behalf of Grober, Inc., requesting the proper classification of an animal feed fat preparation under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).


The subject animal feed fat preparation, consisting of 70% animal fat and 30% whey/whey protein concentrate, will be used as an ingredient in a complete animal feed consisting of 24.4% feed fat preparation, 59.7% whey/whey protein concentrate, 13.3% non-fat dry milk, and 2.5% vitamins and minerals.


Whether the subject preparation is classified as an animal feed containing milk or milk derivatives under subheading 2309.90.3000, HTSUSA.


Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

Heading 2309, HTSUSA, provides for preparations of a kind used in animal feeding. The Explanatory Notes to the HTSUSA, although not legally binding, offer guidance in understanding the scope of the headings. The Explanatory Note to heading 2309 indicates that this heading covers prepared animal feeding stuffs of a mixture of several nutrients designed:

(1) to provide the animal with a rational and balanced daily diet (complete feed);

(2) to achieve a suitable daily diet by supplementing the basic farm-produced feed with organic or inorganic substances (supplementary feed); or

(3) for use in making complete or supplementary feeds. (Underscore added.)

The note later highlights preparations for use in making the complete feeds or supplementary feeds.

The subject preparation is designed to be combined with additional ingredients to produce a complete feed. Consequently, it is classifiable in heading 2309.

Subheading 2309.90.3000, HTSUSA, provides for animal feeds containing milk or milk derivatives. Inasmuch as the preparation contains whey protein concentrate, it is classifiable in subheading 2309.90.3000. Imports classified under subheading 2309.90.3000 are subject to quota restrictions under subheading 9904.10.69, HTSUSA.

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 2309.90.3000, 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.


The animal feed fat preparation is classifiable under subheading 2309.90.3000, HTSUSA, which provides for animal feeds containing milk or milk derivatives, and is subject to quota restrictions under subheading 9904.10.69.


John Durant, Director

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