CLA-2 RR:CR:GC 961719 RTR
Ms. Susan King
James J. Boyle & Company
7505 N.E. Ambassador Place, #B
Portland, Oregon 97220
Re: Dried garlic flakes; intended for animal feed; NY C82915.
Dear Ms. King:
This is in response to your letter, dated March, 16, 1998,
on behalf of Toklat Originals, Inc., requesting reconsideration
of NY C89215 (sic., C82915), dated January 7, 1998. In NY
C82915, Customs classified dried garlic from England in
subheading 0712.90.4040, Harmonized Tariff Schedule of the United
States (HTSUS), as "dried garlic, not further prepared, other
than flour or powder." That ruling also dealt with
classification of an additional article of merchandise, "Herbal
Lick." However, we limit this ruling to the sole issue of the
classification under the HTSUS of dried garlic.
FACTS:
The merchandise, consisting of spray-dried garlic flakes
containing a high level of Allicin, is an herbal equine feed
supplement used in the prevention and treatment of various
disorders in horses. The merchandise is not meant for human
consumption, and is put up for sale in packages which clearly
indicate that it is intended for use in animal feed.
ISSUE:
Whether dried garlic is classified in the eo nomine
provision for dried vegetables in heading 0712, HTSUS, or in a
use provision of heading 2309, HTSUS, as a preparation of a kind
used in animal feeding.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS, in accordance
with the General Rules of Interpretation (GRIs). GRI 1 states in
part that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
The following provisions are under consideration:
0712 Dried vegetables, whole, cut, sliced, broken
or in powder, but not further prepared:
0712.90 Other vegetables; mixtures of
vegetables:
0712.90.40 Garlic
............................................... 31.5%
0712.90.4040 Other
0712.90.8000 Other vegetables; mixtures
of vegetables
.................................... 9.9%
* * * *
2309 Preparations of a kind used in animal
feeding:
2309.90 Other:
Other:
Other:
Other:
2309.90.9500 Other
................
1.9%
* * * *
The Harmonized Commodity Description and Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the Harmonized system. While not legally binding on the
contracting parties, and therefore not dispositive, the ENs
provide a commentary on the scope of each heading of the
Harmonized System and are thus useful in ascertaining the
classification of merchandise under the System. Customs believes
the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg.
35127, 35128 (Aug. 23, 1989).
You contend that the merchandise is classifiable in heading
2309, HTSUS, as a preparation of a kind used in animal feeding.
In support, you indicate that the merchandise is not meant for
human consumption, but is marketed exclusively as an herbal feed
supplement used in the prevention and treatment of various
disorders in horses. Specifically, you indicate that the
merchandise contains the anti-bacterial agent Allicin.
Our research has revealed that Allicin occurs naturally in
garlic. That the merchandise might be good for the health of
horses is irrelevant to the issue of tariff classification,
because its capacity to produce salubrious effects does not
change the fact that the merchandise is merely dried garlic.
Neither does the fact that the merchandise is marketed and
labeled as a food supplement for animals, rather than for humans,
render it classifiable in heading 2309, HTSUS. It has long been
the practice of the Customs Service to classify vegetables in the
specific named tariff provisions for them, even if the vegetable
itself is not intended for human consumption. See HQ 064434,
dated March 5, 1980 (TSUSA ruling on cull carrots for cattle), HQ
086111, dated August 27, 1990 (TSUSA ruling on bean culls), HQ
089013, dated August 2, 1991 (HTSUS ruling on bean culls), NY
874712, dated June 2, 1992 (HTSUS ruling on cull vegetables for
animal feed), and NY 806945, dated March 9, 1995 (HTSUS ruling on
dried, culled beans for animal feed).
Legal Note 1 to chapter 23, HTSUS, provides that:
Heading 2309 includes products of a kind used in animal
feed, 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 by products of
such processing. (Emphasis supplied.)
Your letter indicates that the merchandise is subjected to
no process other than desiccation, which removes moisture, while
concomitantly reducing its size. By virtue of Legal Note 1 to
chapter 23, HTSUS, merchandise of heading 2309, HTSUS, must be
obtained by processing to such an extent that the essential
character of the original material is lost. The desiccation
process to which the garlic is subjected only removes moisture
and reduces the size of the merchandise. There is no fundamental
change in the merchandise which causes it to lose its essential
character. For this reason, the merchandise is not classified in
chapter 2309, HTSUS.
Legal Note 1 to chapter 23, HTSUS, also provides that
"(h)eading 2309 includes products of a kind used in animal feed,
not elsewhere specified or included..."
We are of the opinion that the merchandise is specifically
described eo nomine in subheading 0712.90.4040, HTSUS, which
provides for "Dried vegetables, whole, cut, sliced, broken or in
powder, but not further prepared; Other vegetables; mixtures of
vegetables: Garlic; Other."
We also considered the applicability of the general rule
that an article described with equal specificity by both a "use"
provision and an "eo nomine" provision is more specifically
provided for in the "use" provision. If applicable, this rule
would seem to favor classification of the merchandise in heading
2309, HTSUS. Recently in Mitsui Petrochemicals (America), Ltd.,
v. U.S., No. 97-108, slip op. at 41 (U.S. Ct. Int'l Trade Jul.
30, 1997), the Court of International Trade (CIT) said that
"...many courts have found that an article covered under an eo
nomine provision is preferable over use provisions in certain
circumstances." Totes, Inc., v. U.S., 13 Fed.Cir. (T) ___, 69
F.3d 495 (1995), U.S. v. Simon Saw & Steel Co., 51 CCPA 33
(1964), Border Brokerage Co., Inc., v. U.S., 65 Ct. Cust. 373
(1970). Quoting the Court of Customs and Patent Appeals in U.S.
v. Electrolux Corp., 46 CCPA 143 (1959), the CIT found that "the
doctrine of use' is only an aid to construction and that the
rule of specificity remains at the heart of correct
classification." Thus, we are compelled to return to the
question of whether the merchandise is more specifically
described eo nomine in heading 0712, HTSUS, than in the "use"
provision of heading 2309, HTSUS. For reasons stated above, we
believe that it is.
In your letter, you also suggest that the merchandise might
be classified in subheading 0712.90.8000, HTSUS, which provides
for "Other vegetables; mixtures of vegetables." For the reasons
stated above, we believe that the merchandise is specifically
described in subheading 0712.90.4040, HTSUS. The rate of duty is
31.5% ad valorem.
Accordingly, we affirm NY C82915.
HOLDING:
Dried garlic intended for animal feed is classified in
subheading 0712.90.4040, HTSUS, as "Dried vegetables, whole, cut,
sliced, broken or in powder, but not further prepared; Other
vegetables; mixtures of vegetables: Garlic; Other."
Sincerely,
John Durant, Director
Commercial Rulings Division