HQ 086149: 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.

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 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