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HQ 951744

August 18, 1992

CLA-2 CO:R:C:F 951744 ALS


TARIFF NO.: 2309.90.10

Mr. Andrew R. Messinger
Vice President Marketing
Vitakraft Pet Products Company, Inc.
Chimney Rock Rd. 12E
Bound Brook, New Jersey 08805

RE: Dog Treats Made From Grains or Grain Products With Oils and Fats, Sugar, Vitamin or Mineral Premixes and Other Ingredients

Dear Mr. Messinger:

This is in reference to your April 1, 1992, letter to our New York Seaport Area Office regarding 3 types of bite sized baked treats for dogs of the composition noted above. Your request indicated that the treats would be imported in 55 pound unprinted and untagged paper or plastic bags and repackaged for retail sale subsequent to importation. Your request, along with samples of the bags, was referred to this office for further consideration. During a telephonic discussion on May 18, 1992, with this office, regarding of crushability of dog treats transported in large paper or plastic bags and the method the product inside thereof would be identified without opening the bag, you indicated that your merchandise would probably be imported in 22 pound boxes.

On July 1, 1992, we received your letter of June 29, 1992, with a medium-sized gray box containing no markings. Your letter indicated that the treats would be imported in such boxes with only the following information printed thereon:

*Printed Item Number (for example #23135) *"Manufactured in The Netherlands" (or Germany) *"Not For Retail Sale"

Your letter indicated that each box would contain 10 kilograms of treats.

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

Item #23135 - Wheat flour, meat and meat by-products, (Sandwich sugar, oil and fat and mineral premix. Hearts)

Item #23136 - Ground wheat, sugar, soybean meal, bone meal, (Mini Bones) palm oil, cracked wheat, whey products, carob powder, skim milk powder, fishmeal, vitamin mineral premix, beef, beef glaze, cocoa powder, gelatin, food coloring and vitamin premix.

Item #23140 - Wheat flour, meat and meat by-products, (Raviolos) sugar, oil and fat and mineral premix.

The dog treats will be imported in boxes as described above and repackaged in other containers annotated with information as to ingredients, guaranteed analysis, descriptive names, net weight, etc., subsequent to importation.


1. Are dog treats, composed of grains or grain products with oils and fats, sugar, vitamin or mineral premixes and other ingredients, mixed feeds or mixed-feed ingredients consisting of not less than 6 percent by weight of grain or grain products?

2. Are the products, imported in a plain gray box of 22 pound capacity, containing only information as to the item number of its contents, country of origin thereof and a statement that the contents are not for retail sale, considered to be 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 12, 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 admixture of wheat flour, accounting for 48 to 76 percent of the product, and at least one of the other items noted in the referenced Note. We thus believe that the products are mixed feeds or mixed-feed ingredients as specified in the Note.

We next considered whether the products are dog food put up for retail sale. In Headquarters Ruling 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 in smaller containers which will be labelled to show the ingredients, the guaranteed analysis, the descriptive names, net weight, etc. While we do not question the importer's intention to repackage the products into small retail packages and not to sell them in the boxes in which they are imported, we must consider the products in their 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 sample import carton we note that it is plain, light gray in color and that it does not contain any printing. When closed and sealed it will have approximate dimensions of 11 inches by 15 inches by 11 1/2 inches. According to the importer the only difference between the sample carton and the actual import carton will be that the latter will contain printed information as to the item number, the country of manufacture and a statement that the product is not for retail sale.

We believe that the information on the proposed import carton is information directed at the importer/distributor and not the retail consumer. It merely identifies the contents of each carton, where the product was made and that it is not for retail sale. It does not contain a list of ingredients, product analysis or other information which would be directed at the retail consumer.

Accordingly, we believe that the products when packaged in the above described container are not put up for retail sale.


The dog treats under consideration which consist of not less than 6 percent by weight of grains or grain products fall within the term mixed feeds and mixed feed ingredients as defined in additional U.S. Note 1 of Chapter 23, HTSUSA. Such products when imported in a 22 pound box with information thereon which clearly shows that it is directed at the wholesale importer/distributor rather than the retail consumer and which is specifically labelled "Not For Retail Sale" is not considered as put up for retail sale. Such products, so packaged, are classifiable under subheading 2309.90.10, HTSUSA, and are subject to a free general rate of duty.

Importations of these products are subject to import regulations administered by the U.S. Food and Drug Administration. Information requests regarding those regulations may be addressed to:

U.S. Food and Drug Administration
Division of Regulatory Guidance
HFF 314, 200 C Street, S. W.
Washington, D.C. 20204

The products may also be subject to the regulations of various state agencies throughout the United States. You may wish to contact the appropriate agency in each jurisdiction.

Since the products which are the subject of this ruling will be repackaged subsequent to importation, it will be necessary to comply with the provisions of section 134.26, Customs Regulations (19 CFR 134.26), particularly those related to submission of a Certificate of Marking.


John Durant, Director
Commercial Rulings Division

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