Protest No. 3801-9-000132 of February 6, 1989 and request for further review filed by the Law Offices of Barnes, Richardson & Colburn on behalf of C.J. Tower, Inc.

HQ 086149 June 12, 1990 CLA-2 CO:R:C:G 086149 CB CATEGORY: Classification TARIFF NO.: 184.80; 950.17 District Director of Customs U.S. Customs Service 477 Michigan Avenue Detroit, Michigan 48266 RE: Protest No. 3801-9-000132 of February 6, 1989 and request for further review filed by the Law Offices of Barnes, Richardson & Colburn on behalf of C.J. Tower, Inc. Dear Sir: Protest and request for further review were timely filed against the classification decision, and the liquidation and rate and amount of duties charged on finisher premix animal feed ingredients. FACTS: The instant merchandise was entered by C.J. Tower, Inc., a customs broker who appears as the importer of record of the entries. The entries were made on behalf of the exporter, Grober Farms, Ltd., located in Cambridge, Ontario, Canada. According to the information provided, the imported merchandise is a finisher premix which is a mixture of ingredients used in the production of an animal feed sold as a finisher feed. The imported product is a mixture of animal fat, soya flour, whey powder or whey protein concentrate and vitamins and minerals. The weight breakdown of the imported product is as follows: Component Weight Whey protein concentrate (whey powder) 36.5% Soya flour 30.5% Animal fat 30% Vitamins 3% -2- The product will be further processed in the United States with powdered skim milk and whey powder in order to produce a nutritionally balanced animal feed. The importer claims that in its imported condition the premix is not a complete nutritionally balanced feed which is ready to be fed to the young calves for which it is intended. ISSUE: Whether the subject merchandise is classifiable under the provisions for animal feeds containing milk or milk derivatives? LAW AND ANALYSIS: The merchandise at issue is a premix consisting of whey protein concentrate, soya flour, animal fat and vitamins and minerals. Item 184.80, TSUS, provides for animal feeds, and ingredients therefor, not specially provided for, other, animal feeds containing milk or milk derivatives. Animal feeds containing milk or milk derivatives, classified under item 184.80, are subject to quota restrictions pursuant to item 950.17 in part 3, TSUS. It is the importer's contention that item 184.80 is limited to animal feeds which are fit for use as an animal feed in its imported condition. General Interpretative Rule 10(h) of the Tariff Schedules of the U.S. provides that a tariff description covers such articles whether finished or not finished. Subpart C headnote 1(a) defines the term "animal feeds, and ingredients therefor," as embracing products chiefly used as food for animals, or chiefly used as ingredients in such food. Therefore, since the subject merchandise is a premix which is used in the production of animal feeds, it is properly classified under this subpart. Once the merchandise is classified under a particular subpart, the composition of the goods in question controls classification under a particular provision. Classification of the subject article falls under the provisions for animal feeds containing milk or milk derivatives in item 184.8000, TSUS, because it is clearly not covered by the preceding provision, item 184.7000, TSUS, which covers byproducts obtained from the milling of grains, mixed feeds, etc. Nor, is it covered by item 184.8500, TSUS, which covers other animal feed. Customs has consistently taken the position that animal feed products containing milk derivatives are subject to quota restrictions. See HRL 076586 dated February 19, 1986 and NYRL 801443 dated October 30, 1981. The merchandise at issue consists of 36.5% whey protein concentrate. In our opinion, a product which has a milk derivative as its main ingredient is subject to the quota restrictions. -3- HOLDING: You should DENY this protest in full. A copy of this decision should be forwarded to the law firm of Barnes, Richardson & Colburn, New York, attached to the Customs Form 19. Sincerely, John Durant, Director Commercial Rulings Division