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HQ 962059




October 21, 1998

CLA-2 RR:CR:GC 962059 MGM

CATEGORY: CLASSIFICATION

TARIFF NO.:2106.90.9998

Area Port Director
U.S. Customs Service
200 Granby St.
Ste. 839
Norfolk, Virginia 23510

RE: Protest 1401-97-100178; "Ericssons Alka-Mine Coral Calcium"

Dear Port Director:

This is our decision on Protest 1401-97-100178, concerning your classification of "Ericssons Alka-Mine Coral Calcium" under the Harmonized Tariff Schedule of the United States (HTSUS). In preparing this decision, consideration was given to correspondence from the protestant dated December 2, 1997, and September 2, 1998.

FACTS:

The subject commodity is "Ericssons Alka-Mine Coral Calcium," also described as "calcium carbonate bags," "calcium carbonate bags (HTN Gold)," and "calcium carbonate bags (water purifying bags)." Natural coral sand is gathered from the ocean floor off Okinawa, Japan, cleaned, and screened to size. The product is then packed in individual fiber bags, one gram per bag, and six such bags are placed in foil pouches for retail sale.

The protestant states that when added to tap water the commodity removes chlorine, making the water taste better. Advertising information describes the merchandise as an "additive for healthy water" and claims that "it will normally raise the pH of the water to an alkaline level within 1 to 10 minutes."

The protestant had the product analysed by two independent laboratories. The results of the first analysis are as follows: calcium carbonate (CaCO3), 87.3%; magnesium carbonate (MgCO3), 11.8%; L-ascorbic acid, 0.8%. The results of the second analysis are similar: calcium carbonate, 87.1%; magnesium carbonate, 11.8%; L-ascorbic acid, 0.8%. An advertising brochure lists the ingredients per 1 gram bag as coral calcium 973 mg, magnesium 22 mg, and L-ascorbic acid 5 mg. Customs Laboratory Report 4-96-20641, dated February 29, 1996, states "The sample is small packets containing tan granular material...Laboratory analysis indicates the
product contains the constituents as stated by the importer. The coral calcium' is principally in the form of calcium carbonate." A "Certificate of Content" from Marine Coral Co., Ltd., dated October 26, 1994, states that the L-ascorbic acid is synthetically made from glucose, thus the L-ascorbic acid does not occur naturally, but rather is added after harvesting.

Protestant was directed to enter the merchandise under subheading 2106.90.9998, HTSUS, the residual provision for "Food preparations not elsewhere specified or included." Protestant argues that the proper classification is subheading 2509.00.2000, HTSUS, the provision for "Chalk" other than "crude" chalk.

The seventeen entries whose classification is here protested were made from December 1995 to July 1997, and liquidated on September 12, 1997. A protest was timely filed on December 8, 1997.

ISSUE:

Whether "Ericssons Alka-Mine Coral Calcium" is classified under subheading 2106.90.9998, HTSUS, the residual provision for food preparations, or subheading 2509.00.2000, HTSUS, the provision for chalk.

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 HTSUSA. See, T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The following headings are relevant to the classification of this product:

0508 Coral and similar materials, unworked or simply prepared but not otherwise worked; shells of molluscs, crustaceans or echinoderms and cuttlebone, unworked or simply prepared but not cut to shape, powder and waste thereof

2106 Food Preparations not elsewhere specified or included 2106.90 Other
Other
Other
Other
2106.90.99 Other
Other
Other
Other
2106.90.9998 Other

2509 Chalk
2509.00.20 Other

The entries of "Ericssons Alka-Mine Coral Calcium" were liquidated under heading 2106, HTSUS, which provides for "Food preparations not elsewhere specified or included." This heading includes preparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk, etc.) for human consumption. EN 21.06 (A). Specifically included within this heading are mixtures of plant parts "which are not consumed as such, but which are of a kind used for making herbal infusions or herbal teas' including products which are claimed to offer relief from ailments or contribute to general health and well-being," EN 21.06 (B) (14), thus a product need not be consumed in its entirety to be classified in heading 2106, HTSUS.

The importer, in the packaging which accompanies the product, states "This product may help the body and blood to maintain an optimum alkaline pH level," and the product "will normally raise the pH of the water to an alkaline level within 1 to 10 minutes." This increase in alkalinity comes about as a result of the dissociation of magnesium and calcium cations from carbonate anions, and the subsequent abstraction of a proton (H+) from water by the carbonate anions leaving hydroxide ions (OH- ) in solution. Magnesium carbonate and calcium carbonate are only slightly soluble in water (MgCO3 Ksp = 1 x 10-15; CaCO3 Ksp = 8.7 x 10-9). Zumdahl, Chemistry, third edition. Nonetheless the concentration of carbonate ion is sufficently high to raise the pH of an aqueous solution to approximately 10.

In addition to dissolved magnesium, calcium, and carbonate, the solution will contain L-ascorbic acid (vitamin C). L-ascorbic acid dissolves readily in water. CRC Handbook of Chemistry and Physics, 78th edition.

When added to water, most of the "Ericssons Alka-Mine Coral Calcium" will remain in solid form, however a small amount will dissolve and become part of an aqueous solution to be consumed. Thus, this product is somewhat similar in nature to a teabag and is described by heading 2106, HTSUS. However, heading 2106, HTSUS, provides for "food preparations not elsewhere specified or included," thus, if this merchandise can be properly classified in another heading, it is excluded from heading 2106, HTSUS.

Heading 0508, HTSUS, provides for coral and similar materials unworked or simply prepared but not otherwise worked. Coral is "the calcerous or horny skeletal deposit produced by anthozoan or rarely hydrozoan polyps." Webster's Ninth New Collegiate Dictionary. The Explanatory Notes state that heading 0508, HTSUS, covers "coral, unworked, or from which only the outer crust has been removed." EN 05.08 (1). Here, the coral is in the form of powder and contains synthetically made L-ascorbic acid. This goes beyond being "simply prepared," thus the merchandise is excluded from this heading.

The protestant argues that the merchandise is classified under heading 2509, HTSUS, which provides for chalk. EN 25.09 states "Chalk is a naturally occurring variety of calcium carbonate, composed predominantly of the shells of aquatic micro-organisms." Chemical dictionaries define chalk as "a very fine-grained white rock composed of the skeletal remains of microscopic sea creatures, such as plankton, and consisting largely of calcium carbonate (CaCO3)," Daintith, A Dictionary of Chemistry, third edition, and "A natural calcium carbonate composed of the calcerous remains of minute marine organisms," Hawley, The Condensed Chemical Dictionary, 10th edition. "Ericssons Alka-Mine Coral Calcium" is composed largely of the remains of marine organisms, however it contains a significant amount of magnesium carbonate as well as L-ascorbic acid as an additive. The amount of magnesium carbonate as well as the L-ascorbic acid additive preclude classification as "chalk."

The instant case is distinguishable from NY A84999, dated July 24, 1996, (where "a calcium based material mined in Germany and not treated with any chemicals or additives, and not washed or heated during the process or prior to packaging for shipment" was classified as chalk powder in subheading 2509.00.20, HTSUS) due to the presence of the L-ascorbic acid chemical additive.

HOLDING:

The protest should be Denied. Ericssons Alka-Mine Coral Calcium product is classified in subheading 2106.90.9998, 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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