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HQ 089290

October 1, 1991

CLA-2 CO:R:C:F 089290 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3203.00.5000

District Director of Customs
3600 E. Paisano, Bldg. B, Room 134
Bridge of the Americas
P.O. Box 9516
El Paso, Texas 79985

RE: Request for Further Review of Protest 2402-91-10016, dated February 14, 1991, Concerning Oleorresina Roja (Oleoresin Paprika)

Dear Sir:

This ruling is on a protest that was filed against your decision in the liquidation of January 25, 1991.

FACTS:

The article under consideration is oleoresin paprika, a thick red liquid obtained through solvent extraction of ground paprika pods, the dried ground pods of a mild red pepper (Capsicum annuum).

ISSUE:

Is oleoresin paprika a coloring or a flavoring agent classifiable, respectively, in heading 3203 or 3301, Harmonized Tariff Schedule of the United States Annotated (HTSUSA)?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's) taken in order. - 2 -

GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods, and if the heading and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

In reviewing the headings which might be applicable, we noted two possible headings; heading 3203, as the entry being protested was liquidated, and heading 3301, as suggested by the importer. Heading 3203 provides for coloring matter of vegetable or animal origin. Heading 3301, provides, among other articles, for resinoids; specifically, subheading 3301.30, thereunder. In considering these headings we note that heading 3203 is limited to coloring matter while heading 3301 covers four broad categories of articles. Accordingly, we disagree with the importer's conclusion that heading 3301 is more specific. Based on GRI 1, which, as previously noted, provides that the classification is determined first in accordance with the terms of the headings, etc., we believe it is clear the classification under heading 3203 should prevail.

However, in considering subheading 3301.30.10, as suggested by the importer and considering Explanatory Note (EN) 33.01, which the importer references in the narrative included with the protest, we note that the subheading, at the 8 digit level, refers to prepared oleoresins of the natural raw plant paprika and that the EN provides that prepared oleoresins "...also fall under this heading." The EN's, although not legally binding, reflect the opinion of the international tariff classification experts. While one might draw a conclusion, from reference to the above sources, that the article under consideration is classifiable as suggested by the importer, we note that EN 33.01(A)(4)(iii)(b) specifically states "The heading also excludes: (b) Prepared oleoresins used as colouring matter (heading 32.03)."

The volume on "Flavors and Spices" in the Encyclopedia of Chemical Technology, by Kirk and Othheimer, states that "Paprika, also called sweet pepper or pimento (in Spanish, pimento), is the ground ripe fruit stemless pod of chiefly capsicum annual. The varieties of this annual herb, grown mainly for color (emphasis added)..." The Book of Spices, published by the Livingston Publishing Company, specifically states that "Oleoresin of paprika...is a natural vegetable coloring agent..."

The Customs and commercial documents associated with the protest also support a conclusion that oleoresin paprika is primarily a coloring agent. We note that the merchandise was initially entered as coloring matter by the importer. It was only after a rate advance notice of action was issued on December 20, 1990, that classification under heading 3301 was claimed. Invoices submitted with the Customs entry refer to the article as "MATERIAS COLORANTES DE ORIGEN VEGETAL" (Coloring matter of vegetable origin). The importer in a letter to your office, dated July 19, 1990, stated that "Paprika Oleoresin is used as a coloring agent for cosmetics and food..." While the letter goes on to state that the article has been imported through the port of Chicago for years "under tariff No. 3301.30.10100", which became effective January 1, 1989, we have unable to confirm such classification at Chicago.

Although a facsimile message, dated January 16, 1991, subsequent to the rate advance notice, from the importer to its broker, states that the article is "typically used as a coloring and flavoring", that conclusion is not supported by documentation. Also, while exhibit "A" of the protest, which is apparently the advertising literature of a food broker, states that oleoresin paprika is "an excellent food coloring and flavor" such exhibit only refers to the food coloring quality of the article and to the Mexican producer thereof as a "major producer of natural colors extracted from vegetables".

In consideration of the above, we believe it is clear that oleoresin paprika is primarily a coloring agent.

HOLDING:

Oleoresin Paprika is classifiable under subheading 3203.00.50, HTSUSA, and subject to a general rate of duty of 3.1 per cent ad valorem. Articles so classifiable are eligible for a free special rate of duty if a product of a designated beneficiary developing country for the Purposes of the Generalized System of Preferences (GSP). Such articles, if imported from Mexico, are presently excluded from such treatment by subdivision (c)(ii)(D) of General Note 3, HTSUSA.

Since the rate of duty under the classification indicated above is the same as the liquidated rate, you are instructed to deny the protest in full.

A copy of this ruling should be attached to the Form 19 Notice of Action furnished the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division

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