Application For Further Review of Protest No. 020192100510; Hokamix

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