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HQ 950326

March 19, 1992

CLA-2 CO:R:C:F 950326 ALS


TARIFF NO.: 2309.10.00 9903.23.35

Mr. Ruben T. Pangilinan
Panalpina, Inc.
One Whitehall Street
New York, New York 10004

RE: Dog Treat Biscuits Made from Grains, Meat and Animal Byproducts, Sugar, Oils and Fats, and Minerals

Dear Mr. Pangilinan:

This is in reference to your letter of August 22, 1991, requesting a binding ruling on dog treats manufactured in Holland or, alternatively, Great Britain or Germany. Your request has been referred to this office for consideration.


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

Animal Lovers Koekie and Happy Happer
Grain (wheat and corn) 760 gm 718 gm
Meat & animal byproducts 160 gm 208 gm
Sugar 29 gm 23 gm
Oils and Fats 22 gm 20 gm
Minerals 29 gm 31 gm
1000 gm 1000 gm

The dog treats will be imported in a 10 kilogram (22 pound) box.

You state that the dog treats will be imported in a 22 pound
box which the inquiry refers to as a "master carton". The inquiry indicates that the box will be sent to an occupational center for the elderly or disabled subsequent to importation where the contents thereof will be repackaged into plastic jars with screw on lids or small boxes and a label with the country of origin applied. After that processing the dog treats will be returned by truck to the importer.

A sample of the box, which will apparently be used for each of the referenced dog treats and for another treat labelled "Junior" which is not referenced in the inquiry, has been provided. A sample of the plastic jar and one variety of the dog treats have been provided.

The box has a picture of a dog and a horse on its front and back panels, the words "Animal Lovers" written across a heart in the center of such panels, as well as pictures of 3 different types of treats whose names are printed in the corners of these panels. There is wording on these panels which appears to indicate that the contents of the box are manufactured for dogs and horses but such use is not elsewhere specified. The side panels of the box contain the following information in 4 different languages:

1. Information that it is best to use the product before a date to be specified.

2. Under a heading "For Your Faithful Canine Companion" it provides the Average Analysis and Composition of each product. It also states that the products should be stored in a cool and dry room.

3. The side panels also contain the information that the contents are marrow filled biscuits for all kind (sic) of dogs, they have calcium for strong bones and a healthy pair of teeth and bran for an excellent digestion. The biscuits are also noted to be free of colorants and preservatives.

4. The weight of the contents, 10 kg, is also specified on the side panels of the box.

The jars utilized for repackaging will contain approximately 2 pounds of the product according to information telephonically received from the inquirer who similarly indicated that the product might be repackaged into one pound boxes.


1. Are the products mixed feeds or mixed-feed ingredients consisting of not less the 6 percent by weight of grain or grain products?

2.Are the products dog food put up for retail sale?


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.

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 23, 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 an admixture of wheat and corn and that such grains account for over 70 per cent of each product. We thus believe that the products are mixed feeds or mixed-feed ingredients as specified in the referenced Note.

We next considered whether the products are dog food put up for retail sale. In Headquarters Rulings 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 into smaller containers which will be labelled to show the country of origin, ingredients and brand name. While we do not question the importer's intention to repackage the product into small retail packages and not to sell it in the box in which it is imported, we must consider the product in its 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 "master carton" we note that it contains much information as to the product. This includes the average analysis, composition, that it contains marrow, calcium and bran and how they are good for dogs. The "master carton" contains further information indicating that the product is free of colorants and preservatives. It is also noted thereon that the treats are "For Your Faithful Canine Companion", that they should be stored in a cool and dry room and that they should be used before a date to be specified. There is no information on the "master carton" identifying the manufacturer of the product or the importer. The country of origin is not noted on this package. It is not clear as to whether the wording "Animal Lovers" appearing on the front and rear panels of the box is a brand name or if it serves some other purpose.

Although it is the importer's stated intention to repackage the product into smaller containers and not sell the product in the "master carton", we believe that the above described "master carton", in which the product is imported, is a retail package. We note that the side panels of the box specify that the product is "For Your Faithful Companion". This appears to be directed at the dog owner rather than a party who will be repackaging the product. We also believe that the other information on the side panels is directed toward the dog owner. Information such as the product contains marrow for all kinds of dogs, calcium for strong bones and a healthy pair of teeth, and bran for excellent digestion is data that would be known by a wholesaler of the product without specific notation thereof. Likewise information as to the average analysis, the absence of colorants and preservatives would seem to be informational items directed at the retail consumer. This is to be contrasted with our finding in HRL 088165, dated February 5, 1991, wherein we concluded that plain unmarked cartons containing 22 or 27.5 pounds of dog treats, which would be repackaged into smaller containers subsequent to importation, would be considered bulk packages.

We believe that the information on the "master carton" herein would be available through advertising literature supplied to the wholesaler by the manufacturer. It would appear that the importer would be aware of this information before ordering the product and that this information may have been the basis for ordering this product vis a vis a similar product. Although the "master carton" contains a sizeable quantity of the product we do not believe that is conclusive as to the intended disposition of the product. We note that dog food may normally be purchased at
the retail level in 40 pound bags. While the subject product is to be used as a treat, not as a meal food, and presumably consumed at a lower rate, we do not believe this conclusively confirms that the "master carton" is not intended for the retail purchaser in light of the previously referenced items which we believe indicates that the "master carton" is intended for the retail consumer.


The dog treats under consideration which consist of not less than 6 per cent by weight of grain or grain products fall within the term mixed feed and mixed-feed ingredient as defined in Additional U.S. Note 1 to Chapter 23, HTSUSA. Such articles, when imported in 22 pound boxes with information thereon directed at the retail consumer shall be considered as put up for retail sale. The articles in their condition as imported are considered as put up for retail sale and the fact the importer intends to repackage the articles prior to placing them in the retail marketing chain is not relevant. Such articles would be classifiable under subheading 2309.10.00, HTSUSA, and subject to free general rate of duty.

Such articles, if the product of the European Economic Community, as in this case, are classifiable under the provisions of subheading 9903.23.35, HTSUSA, and subject to a general rate of duty of 100 per cent ad valorem.


John Durant, Director
Commercial Rulings Division

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