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HQ 962766




January 23, 2001

CLA-2 RR:CR:GC 962766 nel

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.95, 2106.90.97

Port Director
U. S. Customs
6 World Trade Center
New York, NY 10048

RE: Protest 1001-99-103601; BetaVit 10% powder

Dear Port Director:

This is our decision on Protest 1001-99-103601, timely filed, on behalf of BASF Corp., on July 21, 1999, against your classification decision regarding merchandise described as BetaVit 10% powder (Betavit) under the Harmonized Tariff Schedule of the United States (HTSUS). The protest covers five entries. The entry dated April 17, 1999, was liquidated April 30, 1999. The entries dated April 13, April 16, and two on April 30, 1999, were liquidated May 7, 1999.

FACTS:

Counsel describes the merchandise as “BetaVit 10%, beta carotene, in granular form derived synthetically, and of similar composition to beta carotene powders used primarily as colorants.” The BASF technical bulletin further describes BetaVit 10% as particles consisting of “beta carotene in a food starch coated mixture of gelatin and sucrose with tocopherol, ascorbate and ascorbyl palmitate as antioxidants and with tricalcium phosphate as an anti-caking agent.” The Material Safety Data Sheet (MSDS) describes the mixture as a dark red powder and provides a breakdown of ingredients in the following approximate amounts:

20% Starch, CAS #9005-25-8

28-30% Sucrose, CAS #57-50-1
30-32% Gelatins, CAS #9000-70-8
12% Beta-carotene, CAS #7235-40-7
9% Includes tocopherol mixtures, ascorbate, ascorbyl palmitate, and tricalcium phosphate

Counsel states that the “BetaVit 10% is a provitamin powder, used for its vitamin qualities in making vitamin or multivitamin capsules.”

The merchandise was entered under subheading 3204.19.35, HTSUS, which provides for: Synthetic organic matter, whether or not chemically defined; preparations as specified in note 3 to chapter 32 based on synthetic organic coloring matter; synthetic organic products of a kind used as fluorescent brightening agents or as luminophores, whether or not chemically defined: Synthetic organic coloring matter and preparations based thereon as specified in note 3 to chapter 32: Other, including mixtures of coloring matter or two or more subheadings 3204.11 to 3204.19: Other: Beta-carotene and other carotenoid coloring matter; and, also under the “K” provision for products listed in the Pharmaceutical Appendix, HTSUS.

Customs classified the product in subheading 2106.90.9998, HTSUS, which provides for: Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Other: Other: Other: Other: Other.

ISSUE:

What is the tariff classification of BetaVit 10% powder under the HTSUS.

LAW & ANALYSIS:

The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTSUS. The majority of imported goods are classified by application of GRI 1; that is, according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, then the remaining GRIs may be applied.

The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System constitute the official interpretation of the Harmonized System at the international level. Though not dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

The merchandise under protest, BetaVit 10%, is a provitamin powder consisting of starch, sugar, gelatin, beta-carotene, as well as provitamins, used primarily in preparations for human consumption. The following headings and legal note are relevant to the classification of Betavit:

2936, HTSUS, which provides for: Provitamins and vitamins, natural or reproduced by synthesis (including natural concentrates), derivatives thereof used primarily as vitamins, and intermixtures of the foregoing, whether or not in any solvent.

3204, HTSUS, which provides for: Synthetic organic matter, whether or not chemically defined; preparations as specified in note 3 to chapter 32 based on synthetic organic coloring matter; synthetic organic products of a kind used as fluorescent brightening agents or as luminophores, whether or not chemically defined.

Chapter 32, Note 3 states that Heading 3204 applies also to “preparations based on coloring matter of a kind used for coloring any material or used as ingredients in the manufacture of coloring preparations.”

2106, HTSUS, which provides for: Food preparations not elsewhere specified or included.

Betavit is excluded from classification as a provitamin under 2936, HTSUS, since it is not a “separate chemically defined organic compound” as required for inclusion by chapter note 1(a). Beta-carotene, one of the product ingredients, is precluded from 2936, HTSUS, because of its use as a coloring substance. Chapter 29 note 2(f) and EN 2.36 Exclusion (6).

Protestant argues that BetaVit 10% is classifiable in heading 3204. Although used primarily in human food applications for other purposes, counsel argues that Betavit belongs to a class or kind of product (beta-carotene) having a principal use as a colorant. Beta-carotene is described eo nomine by subheading 3240.19.35, HTSUS, and must be classified therein. Counsel also refers to a previous protest, 1001-95-107618, the approval of which is not a precedent for this ruling.

While beta-carotene is classified in 3204, HTSUS, Betavit is excluded from classification therein, since it contains not only beta-carotene, but also food additives (vitamins, starch, sugar), which are not dye adjuvants. Betavit is not a preparation “of the kind used as a colorant.” Chapter 32 note 3 and EN 32.04(E).

Additionally, Betavit is excluded from classification as a miscellaneous chemical product, chapter 38, HTSUS, by chapter note 1(b), which specifically excludes “[m]ixtures of chemicals with foodstuffs or other substances with nutritive value, of a kind used in the preparation of human foodstuffs (generally, heading 2106).”

Heading 2106, HTSUS, provides for: Food preparations not elsewhere specified or included. Provided that a food preparation is not more specifically covered by any other heading, heading 2106, HTSUS, will cover any preparation used, either directly or after preparation, for human consumption.

Protestant argues that BetaVit 10% in not properly classified in heading 2106, HTSUS, because it is not a food preparation. Contrary to counsel’s assertion that Betavit does not meet the dictionary definition of “food,” it is a material “containing or consisting of essential body nutrients, as carbohydrates, fats, proteins, vitamins, or minerals, that is taken in and assimilated by an organism to maintain life and growth.” The American Heritage Dictionary, 1982. The starch, sugar, gelatin and previtamins of Betavit are all foods or ingredients used in the preparation of human food.

Heading 2106, HTSUS, includes “preparations consisting of mixtures of chemicals with foodstuffs for incorporation in food preparations either as ingredients or to improve some of their characteristics.” ENs 21.06 (A) and (B). The latter describes the merchandise under protest. Betavit, which contains beta-carotene, is not itself beta-carotene. It is a mixture of chemicals and foodstuffs and other substances with nutritive value. It is used in the preparation of human foodstuffs. Betavit is classified in 2106, HTSUS, since it is not more specifically provided for elsewhere.

Customs classified the merchandise under subheading 2106.90.99, HTSUS, which provides for: Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Other: Other: Other: Other: Other. This classification is incorrect because, according to the MSDS provided for BetaVit 10%, this product contains 28 – 30% sucrose. Over 10% sucrose triggers a quota. Therefore, BetaVit 10% powder is properly classified in subheading 2106.90.95 or 2106.90.97, HTSUS, depending on quota availability, which provides for: Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17: Described in additional U.S. note 8 to chapter 17 and entered pursuant to its provisions.

HOLDING:

Protest 1001-99-103601 should be DENIED. BetaVit 10% powder is properly classified in subheading 2106.90.95 or 2106.90.97, HTSUS, depending on quota availability.

In accordance with Section 3(A)(11)(b) of Customs Directive 099-3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, 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 or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page of the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,


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