Protest on the Classification of a sugar/corn mixture from Canada

HQ 084328 August 8, 1989 CLA-2 CO:R:C:G 084328 JGH CATEGORY: Classification TARIFF NO.: 2309.90.006 Port Director of Customs Port Huron, Michigan RE: Protest on the Classification of a sugar/corn mixture from Canada Dear Sir: This is a decision on the application for further review of protest 3802-89-000015, on the classification of a mixture of 85 percent refined sugar and 15 percent crushed corn. FACTS: The product is said to be a mixture of 85 percent refined sugar and 15 percent crushed corn which is imported for use in formulations of animal feed products designed for baby pigs. The refined sugar is said to be "sourced from the United States, principally from Cane Refiners." The source of the raw sugar, which is refined and then sent to Canada, is said to be both domestic and foreign, with the major quota suppliers being Brazil, the Philippines, and the Dominican Republic. The crushed corn is added to the sugar in one ton rotary blenders and loaded into trucks or railcars for shipment to customers. Subsequent to importation the mixture is not separated but is used in the various formulations of animal feeds, with the sugar content of such formulations not exceeding 20 percent. ISSUE: Whether a mixture of 85 percent refined sugar and 15 per cent crushed corn is classifiable under the provision for other preparations of a kind used in animal feeding in subheading 2309.90.0006, HTSUS, or the provision for sugar in subheading 1701.99.000, HTSUS. -2- LAW AND ANALYSIS: Classification under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that the classification is determined first in accordance with the headings and the relative Section and Chapter Notes. GRI 2(a) states that the unfinished article is to be classified as the finished article, if the unfinished article possesses the essential character of the complete or finished article. The Explanatory Notes constitute the official interpretation of the tariff at the international level. In behalf of the importers several statements were submitted, most of them by producers finished formulations of feed preparations for baby pigs. Basically, the sugar/corn blend is considered to be a nutritionally sound ingredient which is used to make a balanced ration formulated to meet all of the needs of growing swine. Typically the diets contain sugar in amounts up to 20 percent. In addition, the formulated feed contains such ingredients as groats, fish meal, dried whey, soybean oil, and corn. The Explanatory Notes to heading 2309, preparations of a kind used in animal feeding, state that the heading covers sweetened forage and prepared animal feeding stuffs consisting of a mixture of several nutrients designed for use in making complete or supplementary feeds. Included were energy nutrients,consisting of high carbohydrate (high calorie) substances such as starch, sugar, cellulose and fats, which are "burned up" by the animal organism to produce energy. It is apparent that the formulations described in the Explanatory Notes are recognized "animal feeding stuffs"or preparations. From the evidence provided, especially the scientific papers, it is concluded that the desired component of this import is the sugar. To be considered a preparation for use in a complete feed it would have to be a mixture of additional nutrients used in the formulation of the finished animal feed. A product of 85 percent sugar and 15 percent corn does not possess the essential character of the finished feed. It is concluded that this sugar/corn mixture is a mixture within the meaning of GRI 3(b) in that it is a composite good consisting of different materials having no commercial identity, and, therefore, is classified according to its essential character: sugar. -3- HOLDING: The sugar/corn blend described above is classifiable under the provision for sugar in subheading 1701.99.000, HTSUS, and subject to the appropriate quota allocation. You are directed to deny the protest. Sincerely, John Durant, Director Commercial Rulings Division 6 cc: A.D.,N.Y.Seaport New York hurley's library 084328