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HQ 950757


January 9, 1992

CLA-2 CO:R:C:F 950757 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 1003.00.4000

Ms. Carolyn Trout
Nestle USA, Inc.
800 North Brand Blvd.
Glendale, CA 91203

RE: "Kitty Greens" Pet Care Product; Set put up for retail sale; Barley Seeds in heading 1003, HTSUSA

Dear Ms. Trout:

This is in response to your letter of August 16, 1991, and facsimile of January 7, 1992, submitted on behalf of Nestle USA, Inc. Your inquiry requests the proper classification of a pet care product called "Kitty Greens" under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). You submitted a sample with your request for a binding ruling.

FACTS:

The product consists of a packet containing 100 percent barley seeds and a growing medium, known as vermiculite, to grow greens which pet house cats may nibble on, instead of houseplants. The product will be composed equally of the seeds and vermiculite. It will be packaged in a polystyrene tray from which the greens will grow. The merchandise is imported from Holland.

ISSUE:

Whether the components of the "Kitty Greens" pet care product form a set for tariff purposes or, if they do not form a set, what are the applicable HTSUSA headings for its individual articles.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) taken in their appropriate order provide a framework for classification of merchandise under the HTSUSA. The majority of imported goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's may then be applied. The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

The product consists of several articles. The vermiculite growing medium is classifiable in Chapter 25, HTSUSA, "Salt; Sulfur; Earths and Stone; Plastering Materials, Lime and Cement." The barley seeds are classifiable in Chapter 10, HTSUSA, "Cereals." The polystyrene tray is classifiable in Chapter 39, HTSUSA, "Plastics and Articles Thereof: Rubber and Plastics Thereof."

Since the HTSUSA provides for each of these articles in separate headings, classification is determined by applying GRI 3(a) which explains, in pertinent part, that when goods are, prima facie, classifiable in two or more headings, the articles are to be classified in the heading which provides the most specific description of the good in question. However, all headings are regarded as equally specific when each refers to part only of the items in a set put up in retail sale.

In accordance with EN X to GRI 3(b), the product is a set since: (a) at least two of the articles are classifiable in different headings; (b) the product consists of articles put up together to meet a particular need, specifically, to provide greens for a cat to nibble on, as an alternative to houseplants; and (c) the set, which is packaged in a polystyrene tray affixed to a board, is ready for direct sale without repacking.

Since the "Kitty Greens" is, therefore, a set, and the headings under which the components could be classified refer to only part of the articles in the set, we turn to GRI 3(b) to classify the product. This provides that the set is classified by the component which gives the set its essential character. "Essential character" is the attribute which strongly marks or serves to distinguish what an article, or set, is. EN VIII to GRI 3(b) provides that essential character may be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

In this case, the barley seeds impart the essential character. The barley seeds represent the greatest weight of the articles. In addition, the use of the other articles, such as the vermiculite and polystyrene tray, revolve around the use of the barley seeds. The vermiculite promotes the growth of the seeds while the tray functions as a surface from which the seeds may grow.

Focusing on the appropriate heading for the barley seeds we find the product classifiable in heading 1003. The applicable subheading is 1003.00.4000.

HOLDING:

The "Kitty Greens" pet care product is classifiable in subheading 1003.00.4000, HTSUSA, as "Barley: Other (than for malting purposes)." The general column one rate of duty is .34 cents per kilogram.

Sincerely,

John Durant, Director
Commercial Rulings Division

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