CLA-2 RR:CR:GC 962045 MGM
Area Port Director
U.S. Customs Service
300 2nd Ave. South
Great Falls, Montana
Re: Protest 3304-98-100001; “Eurobase 150" Swine Feed
Dear Port Director:
This is our decision on protest 3304-98-100001, concerning your classification of swine feed under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
In response to a request for a binding classification ruling made by GHY USA, Inc., on behalf of East-Man Feeds of Winnipeg, Manitoba, Canada, on October 2, 1997, New York Ruling Letter (NY) C80738 was issued on October 17, 1997. NY C80738, relying on information supplied by GHY USA Inc., states that “Eurobase 150" swine feed contains 10% wheat midds as well as 30% Prolac (deproteinized whey powder), 15% herring and additional ingredients. In NY C80378 “Eurobase 150" was classified in subheading 2309.90.1035, HTSUS.
Several Customs Laboratory Reports state that “Eurobase150” contains less than 6% grain and greater than 10% milk solids. Customs Laboratory Reports 8-97-50481-001, dated September 19, 1997; 8-97-50513-001, dated October 1, 1997; 8-97-50547-001, dated October 10, 1997. In an attachment, the protestant states that “Eurobase 150” is 7.85% midds (grain).
The three entries whose classification is here protested were made in August and September of 1997, and liquidated in December of 1997. A protest was timely filed on March 5, 1998.
ISSUE:
Whether “Eurobase 150” contains 6% or more grain or grain product and is therefore classifiable in subheading 2309.90.10, HTSUS, the provision for mixed feeds or mixed feed ingredients?
LAW AND ANALYSIS:
Merchandise imported into the U.S. is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs. In interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUSA. See, T.D. 89 80, 54 Fed. Reg. 35127 (August 23, 1989).
The following subheadings are relevant to the classification of this product:
2309 Preparations of a kind used in animal feeding:
2309.10 Dog or cat food, put up for retail sale
2309.90 Other:
2309.90.10 Mixed feeds or mixed feed ingredients
2309.90.1035 Swine feed, prepared
Other:
Animal feeds containing milk or milk derivatives: Containing over 10 percent by weight of milk solids:
2309.90.28 Other
2309.90.2890 Other
The protestant is in accord with the liquidated classification of “Eurobase 150” swine feed within subheading 2309.90, HTSUS, which provides for animal feeds “other” than dog or cat food. However, protestant contends that the liquidated classification is in error as to the classification of this merchandise in the provision for goods “other” than mixed feeds.
The term “mixed feeds or mixed feed ingredients” embraces products of heading 2309 which are mixtures of grains or grain byproducts with feedstuffs, and which consist of not less than 6% by weight of grain or grain products. Additional U.S. Note 1, Chapter 23. Thus, in order to be classified in subheading 2309.90.10, HTSUS, an item must consist of at least 6% grain or grain byproducts. Vitek Supply Co. v. United States, 17 CIT 111 (1993). Here, analysis of the merchandise by Customs Laboratories indicates that it contains less than 6% grain or grain byproducts.
Protestant disputes this finding of fact and contends that errors in Customs sampling techniques resulted in inaccurate measurements. However, it is well settled that the methods of weighing, measuring, and testing merchandise used by Customs officers and the results obtained are presumed to be correct. Consolidated Cork Corp. et al. v.United States, 54 Cust. Ct. 83, 85, C.D. 2512 (1965); Headquarters Ruling Letter (HQ) 958589, dated February 14, 1996; Customs Directive 099 3820-002, dated May 4, 1992. It is noted that protestant makes inconsistent claims concerning the grain content of the swine feed. In the letter requesting a binding classification ruling, it is stated that “Eurobase 150" is 10% grain while documents submitted with the protest state that it is 7.85% grain. The findings of the Customs Laboratory are presumed valid and will not be disturbed.
Protestant may argue that Customs is bound by NY C80738 to classify the instant merchandise in subheading 2309.90.1035, HTSUS. A ruling letter setting forth the proper classification of an article under the HTSUS will be binding as to goods whose description is identical to the description set forth in the ruling letter. 19 CFR 177.9 (b)(2). Here, the goods being imported differ materially from those described in NY C80738 in that the instant goods have a grain content of less than 6%. Therefore NY C80738 is not applicable to this transaction.
HOLDING:
The protest should be DENIED. Swine feed with less than 6% grain content and greater than 10% milk solid is classified in subheading 2309.90.2890, HTSUS.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division