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HQ 960867 / 960920


September 25, 1998

CLA-2 RR:CR:GC 960867 / 960920 MGM

CATEGORY: CLASSIFICATION

TARIFF NO.: 3205.00.15

Area Port Director
U.S. Customs Service
6269 Ace Industrial Dr.
Cudahy, Wisconson 53110

RE: Protests 3701-97-100003 and 3701-97-100023; "Carmine #52" Food Colorant; "MicroCap" Carmine Food Colorant

Dear Port Director:

This is our decision on Protests 3701-97-100003 ("Carmine #52 food colorant) and 3701-97-100023 ("MicroCap" carmine food colorant), concerning your classification decision regarding two carmine-based food coloring products under the Harmonized Tariff Schedule of the United States (HTSUS). In preparing this decision, consideration was given to arguments presented at a meeting held at Customs Headquarters on July 23, 1998, as well as submissions of counsel for the protestant dated January 23, 1997, March 7, 1997, June 17, 1997, August 10, 1998, and August 11, 1998. All HTSUS provisions discussed below were those in effect in 1996, when the goods were entered.

FACTS:

The subject commodities are carmine-based food coloring products. Carmine is "an aluminum lake of the pigment from cochineal." Hawley, The Condensed Chemical Dictionary, 10th ed. A lake is an organic pigment produced by the interaction of an oil-soluble organic dye, a precipitant, and an absorptive inorganic substrate. Lakes are insoluble in water. Hawley. Cochineal is "a red coloring matter consisting of the dried bodies of the female insects of Coccus cacti." Hawley. Cochineal contains 10 to 20% of the coloring matter carminic acid (CAS # 1260-17-9 and CAS # 1390-65-4). Cochineal carmine lake is a brilliant red pigment made by precipitating a mixture of cochineal and alum (aluminum potassium sulfate). Brady and Clauser, Materials Handbook, 11th ed., at 197.

Customs Laboratory Reports (No. 3-97-30347-001 dated 4-21-97 (amending No. 3-96-30240-001); No. 3-97-30385-001 dated 5-23-97), state that the "Carmine #52" food colorant is a preparation based on carmine, an aluminum lake of carminic acid. However this product differs from a lake in that it is water soluble.

The "MicroCap" carmine food colorant is formed by microencapsulation of the "Carmine #52" food colorant within a matrix resistant to oxidation. Customs Laboratory Report 3-97-30004-001, dated November 18, 1996, states that the sample "is a preparation based on carmine, an aluminum lake of carminic acid."

Protestant was directed to enter the "Carmine #52" food colorant under subheading 3205.00.4020, HTSUS, "Color lakes; preparations as specified in note 3 to this chapter based on color lakes: Other: Products described in additional U.S. note 3 to section VI: red." Customs classification was later changed to subheading 3205.00.15, HTSUS, "Color lakes...: Carmine: Other." Both subheadings have a 1996 rate of duty of 13.3% ad valorem. Protestant was directed to enter the "MicroCap" Carmine food colorant under subheading 3205.00.15, HTSUS. Protestant originally argued that the proper classification for both items is subheading 3205.00.05, HTSUS, "Color lakes...: Carmine: Food coloring solutions, containing cochineal carmine lake and paprika oleo resins, but not including any synthetic organic coloring matter," and, in the alternative, that the merchandise should be classified in heading 3203, HTSUS, as coloring matter of animal origin. Protestant has since abandoned its argument in favor of classification in subheading 3205.00.05, HTSUS, and now relies solely upon its argument in favor of classification under heading 3203, HTSUS.

The four entries which are the subject of Protest 3701-97-100003 were made from May 15, 1996, to July 26, 1996, and liquidated from October 25, 1996, to November 15, 1996. A protest was timely filed on January 23, 1997. The eight entries which are the subject of Protest 3701-97-100023 were made from May 2, 1996, to December 20, 1996. They were timely protested on April 30, 1997.

ISSUE:

Whether carmine-based food coloring products are properly classifiable under subheading 3205.00.15, HTSUS.

LAW AND ANALYSIS:

Merchandise imported into the U.S. is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs. In interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The following subheadings are relevant to the classification of these food coloring products:

3203.00 Coloring matter of vegetable or animal origin (including dyeing extracts but excluding animal black), whether or not chemically defined; preparations as specified in note 3 to this chapter based on coloring matter of vegetable or animal origin: 3203.00.10 Annato, archil, cochineal, cudbear, litmus, logwood and marigold meal
3203.00.80 Other

3205.00 Color lakes; preparations as specified in note 3 to this chapter based on color lakes:
Carmine:
3205.00.15 Other

Protestant argues that the merchandise should be classified in heading 3203, HTSUS, either under subheading 3203.00.10, or subheading 3203.00.80. EN 32.03 (2) states that "cochineal extract obtained by extraction generally with acidified water or ammonia solution, from cochineal insects" is coloring matter of animal origin. These products contain cochineal extract obtained in such a manner. This heading is not limited to coloring matter of animal origin, such as cochineal extract, but also includes preparations based on coloring matter, of a kind used for coloring any material or used as ingredients in the manufacture of coloring preparations. Legal Note 3, Chapter 32. These food colorants are preparations based on cochineal, which is matter of animal origin, thus they are described by heading 3203, HTSUS.

Within heading 3203, HTSUS, these products are best classified in subheading 3203.00.80, HTSUS. "An eo nomine provision which does not specifically provide for preparations does not encompass preparations within its ambit." Lynteq, Inc. v. U.S., 976 F.2d 693, 697 (CAFC 1992). The food colorants are preparations based upon cochineal, thus they do not fall within the eo nomine provision for "cochineal" and, within heading 3203, are best classified in the residual provision, subheading 3203.00.80, HTSUS.

Customs liquidated the entries in question under heading 3205, HTSUS, the heading for color lakes and preparations based on color lakes. Color lakes include "cochineal carmine lake, generally obtained by treating an aqueous solution of cochineal extract with alum." Production of both food coloring products includes treatment of cochineal extract with alum, as well as other chemical compounds, followed by several other production processes. The "Carmine #52" product is described by the protestant as "not a true lake, although it possesses certain ingredients contained in carmine lake, such as aluminum, cochineal, and calcium." (Supplemental Documents in Support of Protests Challenging Classification of Two Cochineal Products, August 11, 1998, p. 2.) Heading 3205, HTSUS, encompasses preparations based on color lakes, of a kind used for coloring any material or used as ingredients in the manufacture of coloring preparations. Legal Note 3, Chapter 32. Both items of merchandise are preparations based on cochineal carmine lake, a color lake, and thus fall within heading 3205. Within this heading they fall within the residual provision for carmine neither food coloring product contains paprika oleo resins.

Thus, the food colorants are described by two headings. Where merchandise is prima facie classifiable under two headings, the heading which provides the more specific description is preferred to the heading providing a more general description. GRI 3 (a). Here, the merchandise is described more particularly as a preparation based on a color lake. All products based on cochineal carmine lake contain cochineal extract, however not all products based on cochineal contain cochineal carmine lake. "Preparations based on cochineal carmine lake" is a more narrow and specific category than preparations based on cochineal.

Protestant also argues, in the alternative, that classification of carmine-based food colorants is controlled by New York Ruling Letter (NY) 801341, dated September 20, 1994. A ruling letter issued by the Customs Service represents the official position of Customs with respect to the particular transaction described therein and to articles whose description is identical to the description set forth in the ruling letter. 19 CFR ?177.9(a), (b)(2). NY 801341 stated that "the applicable subheading for carminic acid will be 3203.00.5000, Harmonized Tariff Schedule of the United States." This ruling letter is inapplicable to the case at hand because the food colorants are not identical to carminic acid. Carminic acid (CAS# 1260-17-9) has the formula C22H20O13 and is the major pigment of cochineal, the red coloring matter extracted from the dried bodies of the female insect of the species Coccus cacti. Walford, Development in Food Colors, Vol. 1. Cochineal carmine lake is made by precipitating a mixture of cochineal and alum. EN 32.05 makes it clear that the fixation of the coloring matter (cochineal) on the substrate (alum) makes cochineal carmine lake separate and distinct from carminic acid for tariff purposes. Several additional chemical compounds are added to cochineal carmine lake and other process steps are performed before "Carmine #52" food colorant is formed. The "MicroCap" product is made by microencapsulation of the "Carmine #52" product. These additional steps further differentiate the products from carminic acid. These food colorants contain carminic acid but are not equivalent to it.

There is some slight ambiguity as to what commodity is being classified in NY 801341. The ruling letter states that it is in regard to "the tariff classification of carminic acid, CI# 75470." Several sources list carminic acid and CI# 75470 as synonyms. Rempe and Santucci, CTFA International Color Handbook, 2nd ed.; Howard and Neal, Dictionary of Chemical Names and Synonyms. The CTFA International Color Handbook, under the heading CI 75470, lists the CAS numbers as 1390-65-4 and 1260-17-9 and describes the compound as "aluminum lake of cochineal." However, these CAS numbers both correspond to carminic acid, C22H20O13, not the aluminum lake. In addition, the body of the ruling letter mentions only carminic acid, not any lake compound. Thus, NY 801341 should be construed to apply only to carminic acid.

HOLDING:

The protest should be Denied. Carmine-based food colorants are classified under subheading 3205.00.15, HTSUS.

In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office together with the Customs Form 19, Notice of Action, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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