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HQ 084527

June 5, 1989

CLA-2 CO:R:C:G 084527 CB


TARIFF NO.: 2309.90.3000

James G. Meagley, Esq.
Phillips, Lytle, Hitchcock, Blaine & Huber 3400 Marine Midland Center
Buffalo, New York 14203

RE: Classification of a Milk-Based Feed Supplement

Dear Mr. Meagley:

This ruling letter is in response to your inquiry of April 12, 1989, on behalf of Grober, Inc., requesting a classfication ruling under the Harmonized Tariff Schedule of the United States (HTSUSA), for a milk-based feed supplement.


The merchandise is a premix which is used in the production of two animal feeds. The imported premix is a combination of whey protein concentrate, soya flour, animal fat, and vitamins and minerals. The premix must be further processed in the United States with powdered skim milk and whey powder in order to produce a complete nutritionally balanced animal feed which can be feed to young animals.


Whether the instant product is classified as an animal feed containing milk or milk derivatives under 2309.90.3000.


Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's), taken in order. GRI 1 states, in part, that "classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes...." In applying GRI 1, GRI 2(a) provides that "[a]ny reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article."

Chapter 23, HTSUSA, provides for prepared animal feed. The Explanatory Notes to Chapter 23, HTSUSA, although not legally binding provide some guidance as to interpreting this provision. The Notes state that Heading 2309 includes products of a kind used in animal feeding, not elsewhere specified or included, obtained by processing vegetable or animal materials to such an extent that they have lost the essential characteristics of the original material, other than vegetable waste, vegetable residues and byproducts of such processing. Subheading 2309.90.3000 applies to preparations of a kind used in animal feeds containing milk or milk derivatives.

The merchandise at issue consists of : 36.5% whey protein concentrate, 30.5% soya flour, 30% animal fat, and 3% vitamins and minerals. In our opinion, the merchandise, to which a more than equal volume of whey powder and skim milk concentrate will be added after importation to make a finished animal feed, nevertheless has the essential character of the finished animal feed at the time of importation and, pursuant to GRI 2(a), HTSUSA, is subject to classification as if finished. Inasmuch as the imported article contains milk or milk derivatives (the whey protein concentrate), subheading 2309.90.3000, HTSUSA, applies. Imports classified under subheading 2390.90.3000 are subject to quota restrictions under subheading 9904.10.69.

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 2309.90.30, 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 premix is classifiable under subheading 2309.90.3000, HTSUSA, which provides for animal feed containing milk or milk derivatives, and is subject to quota restrictions under
subheading 9904.10.69. Canada does not have an import quota allotment and therefore the merchandise at issue cannot be imported into the United States.


John Durant, Director
Commercial Rulings Division

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