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NY E89063

January 27, 2000

CLA-2-01:RR:NC:2:231 E89063


TARIFF NO.: 0102.90.4028; 0102.90.4084

Mr. David Walser
Arthur J. Humphreys Division
Border Brokerage Company, Inc.
P.O. Box 249
Sumas, WA 98295

RE: The tariff classification of livestock from Canada.

Dear Mr. Walser:

In your letter, dated October 13, 1999, you requested a classification ruling on behalf of your client, Floris Livestock, Abbotsford, British Columbia.

Your inquiry concerns the classification of two bovine animals. The first is a heifer of about 80 kilograms. This animal is not purebred and it will be imported by a dairy farm. The second animal is a springer heifer, not a purebred and weighing about 500 kilograms, which will also be imported by a dairy farm. You explain that a “springer” is a heifer that is pregnant for the first time and is not yet lactating. Both heifers will be used in the dairy industry.

Heading 0102, HTS, which provides for live bovine animals, is divided, initially, into two primary subheadings. Subheading 0102.10, HTS, provides for “Purebred breeding animals." All other live bovines are provided for in the second subheading, 0102.90, HTS, the provision for “Other” live bovine animals. At the secondary level, “Other” bovine animals are provided for in subheading 0102.90.20, HTS, which provides for “Cows imported specially for dairy purposes,” and in subheading 0102.90.40, HTS, which includes “Other” bovines not provided for under the provisions for “Purebred breeding animals” or for “Cows imported specially for dairy purposes.”

You state in your letter that these heifers are not purebred animals. Accordingly, they would not be classifiable in subheading 0102.10, HTS. You mention that these heifers will be imported by a dairy farm and will be used in the dairy industry, statements that would invite consideration of subheading 0102.90.20, HTS, the provision for “Cows imported specially for dairy purposes.”

In considering classification in subheading 0102.90.20, HTSUS, we note, first, that the provision for “Cows imported specially for dairy purposes” is a national provision and, in fact, has been carried over from its predecessor provision, item 100.50 in the Tariff Schedules of the United States Annotated, which is the U.S. tariff that preceded the current Harmonized Tariff Schedule. Further, we note that the meaning of “cow” in this provision was the subject of litigation under the TSUS in C.D. 4420 [70 Cust. Ct. 141,385 F. Supp. 1295 (1973)]. The decision of the Customs Court was unsuccessfully appealed in E. Dillingham, Inc. v. the United States (C.A.D. 114), February 7, 1974. The decision of the court has not been modified or revoked by any subsequent litigation. Briefly, the Court held that the “meaning of ‘cow’ in the dairying trade is a female bovine if a breed suitable for dairying purposes which has produced a calf.” With regard tot he status of the bred heifers which were the subject of the decision, the court held that the “fact that” [the] “context of item 100.50 is silent on age does not enable imported female Holstein-Friesian bovines, each pregnant for the first time, to qualify as ‘Cows imported specially for dairy purposes.’”

Based on the foregoing, we conclude that neither heifers, weighing about 80 kilograms each, nor springer heifers, bred for the first time but not yet having produced a calf, fall within the subheading in 0102.90.20, HTSUS, as “Cows imported specially for dairy purposes.” Accordingly, classification will be within the final subheading in 0102.90.40, HTSUS, as Other live bovine animals.

The applicable subheading for heifers weighing about 80 kilograms will be 0102.90.4028, Harmonized Tariff Schedule of the United States (HTS), which provides for live bovine animals, other, other, other, weighing less than 90 kilograms each, female. The general rate of duty will be 1.2 cents per kilogram.

The applicable subheading for springer heifers, weighing about 500 kilograms each, will be 0102.90.4084, HTS, which provides for live bovine animals, other, other, other, weighing 320 kilograms or more each, other, female. The general rate of duty will be 1.2 cents per kilogram.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Thomas Brady at 212-637-7064.


Robert B. Swierupski

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