H311412

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H311412 August 17, 2021 OT:RR:CTF:FTM H311412 JER CATEGORY: Classification TARIFF NO.: 2309.90.1050 Center Director Pharmaceuticals, Health and Chemicals Center for Excellence and Expertise 1100 Raymond Boulevard Newark, NJ 07730 ATTN: Tracy L. Coffield, Import Specialist RE: Application for Further Review of Protest No. 3901-20-112902; Tariff Classification of mixed feeds and mixed-feed ingredients Dear Center Director: This is our decision regarding the Application for Further Review (“AFR”) of Protest No. 3901-20-112902, timely filed on or about May 29, 2020, by the law firm of Faegre Drinker Biddle & Reath LLP, on behalf of their client, Lonza, Ltd. (“Protestant”), concerning the tariff classification of a certain animal feed formulation under the Harmonized Tariff Schedule of the United States (“HTSUS”). Protest No. 3901-20-112902 is the lead protest for all other protests filed concerning the subject imported goods. Protestant has asked that certain information submitted in connection with this AFR be treated as confidential. Inasmuch as this request conforms to the requirements of 19 C.F.R. §177.2(b)(7), the request for confidentiality is approved. The information contained within brackets will not be released to the public and will be withheld from published versions of this decision. FACTS: This AFR concerns entries made on or about July 1, 2019, wherein CBP liquidated the imported Carniking™ 10 under subheading 2309.90.95, HTSUS, which provides for: “Preparations of a kind used in animal feeding: Other: Other: Other: Other: Other.” According to Protestant, the subject “Carniking™ 10 is formulated under a confidential formula that includes: [XXXXXX, XXXXXX, and [XXXXXX], [XXXXXX] and XXXXXX water]. The [XXXXXX] is dissolved in [XXXXXX]. A mixture of dry [XXXXXX] are mixed together. [XXXXXX and XXXXXX] are added. Next, the dry mixture of [XXXXXX, XXXXXX, XXXXXX, XXXXXX] and other ingredients are injected with liquid XXXXXX]. Once the dry formula is created, it is sieved and then filled into bags for transport. Protestant describes the subject Carniking™ 10 as an animal feed preparation, utilized in dry feed formulations. According to Protestant, Carniking™ 10 is a source of L-carnitine. Carnitine is an amino acid derivative that occurs naturally in the body. It is essential for energy metabolism - in particular, the metabolism of fatty acids. L-carnitine aids in fat digestion and impacts other cellular biochemical processes in the body, both directly and indirectly. Carniking™ 10 is produced by applying L-carnitine to an inert carrier. It is said to be free flowing, non-hygroscopic, and readily miscible. Carniking™ 10 is used in the manufacturing of dry animal feed formulations, premixes, and other base mixes. ISSUE: Whether the subject animal feed formulation is “mix feeds or mixed-feed ingredient” for purposes of Additional U.S. Note 1 to Chapter 23, HTSUS, and, therefore, classifiable under subheading 2309.90.10, HTSUS, or whether the animal feed formulation is properly classified under subheading 2309.90.95, HTSUS. LAW AND ANALYSIS: Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed on or about May 29, 2020, within 180 days of liquidation. 19 U.S.C. § 1514(c)(3). Further Review of Protest No. 3901-20-112902 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(c) because the decision against which the protest was filed is alleged to be inconsistent with matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Classification of goods under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined 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 GRI may then be applied in order. Because the instant classification question occurs beyond the four-digit heading level, GRI 6 is implicated. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level. GRI 6 further provides that, for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires. The HTSUSA subheadings under consideration are the following: 2309 Preparations of a kind used in animal feed: 2309.90 Other: 2309.90.10 Mix feeds or mixed-feed ingredients… * * * 2309.90.1050 Other… * * * Other: Other: 2309.90.9500 Other… * * * The relevant Legal Notes to Chapter 23, HTSUS, are the following: Note 1. Heading 2309 includes products of a kind used in animal feeding, 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 byproducts of such processing. Additional U.S. Note 1. The term “mixed feeds and mixed-feed ingredients” in subheading 2309.90.10 embraces products of heading 2309 which are admixtures of grains (or products, including byproducts, obtained in milling grains) with molasses, oilcake, oil-cake meal or feedstuffs, and which consist of not less than 6 percent by weight of grain or grain products. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs 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 ENs to heading 2309, HTSUS, provide, in relevant part, as follows: This heading covers sweetened forage and prepared animal feeding stuffs consisting of a mixture of several nutrients designed: (1) to provide the animal with a rational and balanced daily diet (complete feed); (2) to achieve a suitable daily diet by supplementing the basic farmproduced feed with organic or inorganic substances (supplementary feed); or (3) for use in making complete or supplementary feeds. The heading includes products of a kind used in animal feeding, obtained by processing vegetable or animal materials to such an extent that they have lost the essential characteristics of the original material, for example, in the case of products obtained from vegetable materials, those which have been treated to such an extent that the characteristic cellular structure of the original vegetable material is no longer recognisable under a microscope. * * * (C) PREPARATIONS FOR USE IN MAKING THE COMPLETE FEEDS OR SUPPLEMENTARY FEEDS DESCRIBED IN (A) AND (B) ABOVE These preparations, known in trade as “premixes”, are, generally speaking, compound compositions consisting of a number of substances (sometimes called additives) the nature and proportions of which vary according to the animal production required. These substances are of three types : (1) Those which improve digestion and, more generally, ensure that the animal makes good use of the feeds and safeguard its health : vitamins or provitamins, aminoacids, antibiotics, coccidiostats, trace elements, emulsifiers, flavourings and appetisers, etc. (2) Those designed to preserve the feeding stuffs

Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed on or about May 29, 2020, within 180 days of liquidation. 19 U.S.C. § 1514(c)(3). Further Review of Protest No. 3901-20-112902 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(c) because the decision against which the protest was filed is alleged to be inconsistent with matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Classification of goods under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined 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 GRI may then be applied in order. Because the instant classification question occurs beyond the four-digit heading level, GRI 6 is implicated. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level. GRI 6 further provides that, for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.The HTSUSA subheadings under consideration are the following: 2309 Preparations of a kind used in animal feed:2309.90 Other: 2309.90.10 Mix feeds or mixed-feed ingredients…* * *2309.90.1050 Other…* * *Other:Other:2309.90.9500 Other…* * *The relevant Legal Notes to Chapter 23, HTSUS, are t