eceived.

HQ 962695 July 2, 1999 CLA-2 RR:CR:GC 962695ptl CATEGORY: Classification TARIFF NO.: 2309.90.9500 Ms. Lynda L. Schwab Racing Pigeon Bulletin Supplies 34 East Franklin Street Bellbrook, OH 45305 RE.: “GEM-lytes” products for pigeons; NY 806484 modified. Dear Ms. Schwab: In New York Ruling Letter (NY) 806484, issued to you on March 1, 1995, Customs classified five products. One of those products, “GEM-lytes”, was classified in subheading 3004.90.9003, Harmonized Tariff Schedule of the United States (HTSUS), which provides for medicaments (excluding goods of heading 3002, 3005 or 3006) consisting of mixed or unmixed products for therapeutic or prophylactic uses, put up in measured doses or in forms or packings for retail sale: other: other: for veterinary use. We have reviewed that ruling and determined that the classification of that product was incorrect. Accordingly, this letter modifies NY 806484 to correctly classify “GEM-lytes”. A notice of the proposed modification of NY 806484 was published in Vol. 33, No. 21 of the Customs Bulletin dated May 26, 1999. No comments were received. FACTS: “GEM-lytes” is a powdered compound containing electrolytes and trace elements in a water soluble form. It contains sulphates of copper, cobalt, iron, manganese, potassium, sodium and zinc on an acidified soluble base. After having been dissolved in liquid, the product is intended to be consumed by pigeons to replace salts lost after training or racing.  ISSUE: What is the classification of a nutritional supplement for pigeons? LAW AND ANALYSIS: Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied in order. In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The HTSUS headings under consideration are as follows: 2309 Preparations of a kind used in animal feeding: 2309.90 Other: Other: Other: Other: 2309.90.9500 Other. 3004 Medicaments (excluding goods of heading 3002, 3005 or 3006) consisting of mixed or unmixed products for therapeutic or prophylactic uses, put up in measured doses or in forms or packings for retail sale  3004.90.9090 Other: 3004.90.9003 For veterinary use. The blend of electrolytes and minerals in the product is designed as a tonic supplement for general maintenance of health and well-being of pigeons. There are no claims or indications of usage for the product’s being intended for the treatment of any specific condition or ailment. The product is intended to be consumed as part of an overall training regimen, not taken to cure or prevent any particular ailment or condition. The concentrations of vitamins and minerals in the mixture are comparatively low and do not reach levels found in therapeutic dosages which are usually only taken under the supervision and direction of a veterinarian. Chapter 30, HTSUS, covers pharmaceutical products. Of special significance is note 1(a) to chapter 30, which states: “This chapter does not cover: (a) Foods or beverages (such as dietetic, diabetic or fortified foods, food supplements, tonic beverages and mineral waters) (section IV)”. Chapter notes are part of the legal text of the HTSUS, and are to be considered statutory provisions of law for all purposes. Because the chapter notes are mandatory authority for classification, merchandise described by note 1(a) to chapter 30 is excluded from classification in that chapter. The exclusion of the instant product from chapter 30 is reinforced by the ENs to heading 30.04 which provides that: Further this heading excludes food supplements containing vitamins or mineral salts which are put up for the purpose of maintaining health or wellbeing but have no indication as to use for the prevention or treatment of any disease or ailment. These powders have been prepared to supplement the diet of pigeons which have been stressed by rigorous training and racing. This product is a restorative tonic, a “Gatorade®” for birds, and is not offered for sale with the expectation that it will be taken for therapeutic or prophylactic purposes. Inasmuch as this product is intended for animals, we turn to heading 2309, HTSUS, which provides for preparations of a kind used in animal feeding. The ENs to heading 23.09 state that the heading covers the type of preparations such as the one under consideration here which has been designed to provide a racing pigeon with all the nutrient elements required to ensure a healthful and balanced daily diet. The ENs further provide that the heading includes feeding preparations for birds. As such, “GEM-lytes” clearly fall within the scope of preparations covered in heading 2309, HTSUS, as a preparation of a kind used in animal feeding. HOLDING: For the reasons stated above, the product identified as “GEM-lytes” is classified in subheading 2309.90.9095, HTSUS, which provides for: Preparations of a kind used in animal feeding: other: other: other: other: other. NY 806484 is modified. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin. Sincerely, John Durant, Director Commercial Rulings Division