HQ 955694: Application For Further Review of Protest No. 020192100510; Hokamix

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 955694
 
                          June 6, 1994



CLA-2 CO:R:C:F 955694 K

CATEGORY: Classification 

TARIFF NO.: 2309.90.9000

District Director of Customs
U.S. Customs service
P.O. Box 1490
St. Albans, Vermont 05478

RE: Application For Further Review of Protest No. 020192100510;
    Hokamix

Dear Sir:

     The following is in response to the referral by your office,
dated March 3, 1993, of the request for further review of the
above-referenced protest.

FACTS:

     The consumption entry covering the imported merchandise was
liquidated on October 30, 1992, under the provision for other
provitamins and vitamins, natural or reproduced by synthesis
(including natural concentrates), derivatives thereof used
primarily as vitamins, and intermixture of the foregoing, whether
or not in any solvent, in subheading 2936.90.0000, Harmonized
Tariff Schedule of the United States (HTSUS), with duty at the
general rate of 4 percent ad valorem.  A timely classification
protest under 19 U.S.C. 1514 was received on December 4, 1992. 
The protestant requests reliquidation of the entry under the
provision for other plants or parts of plants (including seeds and
fruits), of a kind used primarily in perfumery, in pharmacy or for
insecticidal, fungicidal or similar purposes, fresh or dried,
whether or not cut, crushed or powdered, in subheading
1211.90.8080, free of duty.

     The submitted literature describes Hokamix as "a unique
product made of natural minerals, trace elements, vitamins and
medicinal herbal extracts" and it further describes the composition
of Hokamix as "a mixture of plants and herbs including camomile,
balm, amica, alfalfa and cayenna."  The 
product is used as a supplement to dog and cat foods.

                               -2-

ISSUE:  The issue concerns the proper classification of the above-
described product.

LAW AND ANALYSIS:

     The Explanatory Notes to the Harmonized Commodity Description
and Coding System (EN), is a guideline for use in determining
classification under HTSUS.    The EN for heading 1211, state, in
part, that the heading covers plants and parts of plants of a kind
used directly for the purposes specified (in the heading) or if
used in the production of extracts, alkaloids or essential oils
suitable for those purposes.  The submitted literature indicates
that the product contains "herbal extracts" not plants and parts
of plants of a kind that may be used to produce extracts.  Further,
heading 1211 covering plants and parts of plants as quoted above
under the facts, does not include extracts of such plants and parts
of plants.  Accordingly, the product is not classifiable in heading
1211.

     Plant extracts are provided for in heading 1302, HTSUS, but
the heading would not include plant extracts mixed with other
ingredients and intended for a specific use such as a food
supplement.  
     
     The product as described is intended for specific use as a
food supplement for dogs and cats.  Note 1, Chapter 29, HTSUS, 
precludes from coverage under heading 2936 products particularly
suitable for specific use rather than for general use. 
Accordingly, subheading 2396.90.0000, HTSUS, is not applicable.

     The product Hokamix was previously the subject of Headquarters
Ruling Letter 953755, dated September 3, 1993, and is incorporated
by reference as part of this decision.  That decision held that
Hokamix, a herbal food supplement intended for dogs and cats which
is directly mixed with their food prior to ingestion by such
animals is classifiable in subheading 2309.90.9000, HTSUS.

HOLDING:

     A product known as Hokamix, used as a food supplement for dogs
and cats, is classified under the provision for other preparations
of a kind used in animal feeding, in subheading 2309.90.9000,
HTSUS, with duty at the general rate of 3 percent ad valorem.

     You are directed to deny the protest for the claim of
classification of the merchandise under subheading 1211.90.8080,
HTSUS, free of duty.  The entry was liquidated under subheading
2936.90.0000, HTSUS, with duty at the general rate of 4 percent ad
valorem.  The protestant should have the benefit of this decision. 
Accordingly, the entry should be reliquidated to 

                               -3-

reflect the correct classification under subheading 2309.90.9000,
HTSUS, with duty at the general rate of 3 percent ad valorem.    

     In accordance with Section 3A(11)(b) of Customs Directive 099
3550-065, Revised Protest Directive, dated August 4, 1993, a copy
of this decision attached to Customs Form 19, Notice of Action,
should be provided by your office to the protestant no later than
60 days from the date of this decision and any reliquidations of
entries in accordance with this decision must be accomplished prior
thereto.  Sixty days from the date of this decision the Office of
Regulations and Rulings will take steps to make this decision
available to Customs personnel via the Customs Rulings Module in
ACS and the public via the Diskette Subscription Service, Freedom
of Information Act and other public access channels.

                         Sincerely,




                         John Durant, Director
                         Commercial Rulings Division