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HQ 965699




September 25, 2002

CLA-2 RR:CR:GC 965699 AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.99

Port Director
U.S. Customs Service
605 W. Fourth Ave.
Anchorage, AK 99501

RE: Protest 3195-01-100505; Caromin® 25%

Dear Port Director:

This is our decision on Protest 3195-01-100505, timely filed by counsel on behalf of H. Reisman Corp., on December 20, 2001, against your decision in the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of Caromin® 25% identified in one entry liquidated on September 21, 2001. In preparing this ruling, we have also considered comments made in a telephone conference with a member of my staff on September 24, 2002.

FACTS:

Caromin® 25% is an opaque reddish palm oil suspension consisting of Beta-Carotene (CAS 7235-40-7) and Alpha-Carotene (CAS 7488-99-5) comprising 23-25%, and other carotenoids comprising 1-2% of the product in 75% palm oil comprised of mono, di and triglycerides. It is used as a dietary supplement. Caromin® 25% is created by extracting palm oil from palm fruit and performing a molecular distillation process which partially esterifies the oil removing waxes and fats. The distillate is standardized to 25% carotenoid components by the addition of a small amount of palm oil. Caromin® 25% is not approved for use as a coloring agent by the Food and Drug Administration (FDA).

The information sheet on Caromin® 25% states, in pertinent part, the following:

Stability Caromin® 25% is stabilized with 0.3% tocopherols. Its shelf life is 18 months when stored in cool and dry place in unopened original containers. Once opened, the product should be used immediately.

Packaging Caromin® 25% is available in 1-kg, 5-kg and 25-kg container under nitrogen. Other types of packages are available upon request. Small 15g samples are available for evaluation purposes.

Storage Caromin® 25% is sensitive to air, light and heat. Store in airtight containers at or below room temperature.

Protestant entered the merchandise on November 8, 2000, under subheading 3204.19.35, HTSUS, the provision for "Synthetic organic coloring matter, whether or not chemically defined; preparations as specified in note 3 to this chapter 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 this chapter: Other, including mixtures of coloring matter of two or more of the subheadings 3204.11 to 3204.19: Beta-carotene and other carotenoid coloring matter." The entry was liquidated on September 21, 2001 and the protest filed on December 20, 2001, claiming classification in subheading 2936.10.00, HTSUS, the provision 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: Provitamins, unmixed." Protestant proffers two alternative classifications: subheading 2936.21.00, HTSUS, the provision 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: Vitamins and their derivatives, unmixed: Vitamins A and their derivatives," and subheading 1511.90.00, HTSUS, the provision for "Palm oil and its fractions, whether or not refined, but not chemically modified: Other."

ISSUE:

What is the classification of Caromin® 25%?

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 that 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 related 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. 8980, 54 Fed. Reg. 35127 (August 23, 1989).

The following HTSUS provisions are relevant to the classification of this product:

1511: Palm oil and its fractions, whether or not refined, but not chemically modified:

Food preparations not elsewhere specified or included:

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:

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:

3204 Synthetic organic coloring matter, whether or not chemically defined; preparations as specified in note 3 to this chapter 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:

The General ENs to Chapter 15 state, in pertinent part, the following:

. . . animal or vegetable fats and oils are esters of glycerol with fatty acids (such as palmitic, stearic and oleic acids).

Headings 15.04 and 15.06 to 15.15 also cover fractions of the fats and oils mentioned in those headings, provided they are not more specifically described elsewhere in the Nomenclature (e.g., spermaceti, heading 15.21). The main methods used for fractionation are as follows :

(a)dry fractionation which includes pressing, decantation, winterisation and filtration;

(b)solvent fractionation; and

(c)fractionation with the assistance of a surface-active agent. Fractionation does not cause any changes in the chemical structure of the fats or oils.

Chapter Note 1 to Chapter 29 states, in pertinent part, the following:

Except where the context otherwise requires, the headings of this chapter apply only to:

(a) Separate chemically defined organic compounds, whether or not containing impurities;

(b) Mixtures of two or more isomers of the same organic compound (whether or not containing impurities), except mixtures of acyclic hydrocarbon isomers (other than stereoisomers), whether or not saturated (chapter 27);

(e) Products mentioned in (a), (b) or (c) above dissolved in other solvents provided that the solution constitutes a normal and necessary method of putting up these products adopted solely for reasons of safety or for transport and that the solvent does not render the product particularly suitable for specific use rather than for general use;

EN 21.06(B) states that the heading covers "Preparations consisting wholly or partly of foodstuffs, used in the making of beverages or food preparations for human consumption."

Chapter 32, Note 3 states that headings 3203 and 3204, HTSUS, apply to “preparations based on coloring matter of a kind used for coloring any material or used as ingredients in the manufacture of coloring preparations.”

The instant merchandise is palm oil that has undergone molecular distillation to remove waxes and fats which concentrates the caratenoids in the oil. Molecular distillation is not mentioned as a process of fractionation for oils. The EN to Chapter 15, HTSUS, explains that fractions are chemically the same as fats and oils. Fats and oils are composed of esters of glycerol otherwise known as glycerides. In HQ 962807, dated April 20, 2002, discussing the classification of Palm Fatty Acid Distillate, we state "distilling, or breaking up a palm oil into glycerol and fatty acids, and then separating the fatty acids, has chemically modified the oil." We explain that the term "not chemically modified" refers to "chemical modification of the oil, not how that modification is caused. In the instant situation, protestant's product is produced from palm oil, but it has been chemically modified and does not have the chemical structure of an oil triglyceride and is not eligible for classification in Chapter 15."

Furthermore, the booklet, "Food Fats and Oils," 8th ed., (The Institute of Shortening and Edible oils, Inc., Washington, D.C.,1999, pg. 2, describes the various minor components in fats and oils and lists under Item 7 "Carotenoids and Chlorophyll" with the following description: "Carotenoids are color materials occurring naturally in fats and oils. Most range in color from yellow to deep red. Chlorophyll is the green coloring matter of plants which plays an essential part in the photosynthesis process. At times, the naturally occurring level of chlorophyll in oils may be sufficient for the oils to be tinged green. The levels of most of these color bodies are reduced during the normal processing of oils to give them acceptable color, flavor, and stability."

Here, the carotenoids are not a fraction of the palm oil, because they are not an oil. They are a minor component, normally reduced or removed from the oil, which in the subject merchandise, now accounts for 25% of the product. As in HQ 962807, the palm oil has been modified such that it contains a ratio of glycerides to carotenoids not chemically characteristic of palm oil. Therefore, the instant merchandise cannot be considered palm oil or its fractions. See also HQ 964531, dated March 14, 2002, and HQ 959798, dated July 29, 1999.)

Substances classifiable in Chapter 29 must be separate chemically defined compounds or isomers thereof. Alpha carotene and beta carotene are isomers because they consist of two or more molecules having the same number and kind of atoms and the same molecular weight but differ in the arrangement of the atoms. Some of the trace carotenoids are not isomers of alpha or beta carotene. Even if these are considered de minimus and of no consequence to classification within Chapter 29, the product contains 75% palm oil. Palm oil is not an isomer of alpha and beta carotenes.

Protestant claims that the palm oil in the product is a solvent. Chapter 29, Note 1(e) allows for isomeric mixtures to be dissolved in solvents provided this is the "normal and necessary method of putting up these products adopted solely for reasons of safety or for transport and that the solvent does not render the product particularly suitable for specific use rather than for general use." While the palm oil could technically be considered a solvent, it does not appear to be present for safety or transport in the amount specified. Carotenoids are "yellow to deep red, crystalline solids; soluble in fats and oils; insoluble in water; high-melting; stable to alkali but unstable to acids and to oxidizing agents; color easily destroyed by hydrogenation or by oxidation; some are optically active." Hawley's Condensed Chemical Dictionary, 12 ed., Van Nostrand Reinhold Co., (New York, 1993, p. 226). The merchandise contains tocopherols for stabilization and is contained under nitrogen in an airtight container. Instead, the high percentage of palm oil renders the product particularly suitable for the specific use as a dietary supplement. In fact, the merchandise is imported ready for encapsulation and sale as such. Thus, Caromin® 25% is not classifiable in Chapter 29.

Protestant urges that Caromin® 25% nevertheless meets the terms of heading 2936, HTSUS, in that it is an intermixture of provitamins in a solvent. We refuse to interpret the heading text in a way discordant to the Chapter notes. The palm oil in the product is not described by the Chapter note. Hence, Caromin® 25% cannot be classified in heading 2936, HTSUS.

EN 29.36 specifically excludes certain substitutes for vitamins including “(6) Provitamins A (α, ß, γ -carotenes and cryptoxantin) because of their use as colouring substances (heading 32.03 or 32.04).” For this reason, the merchandise was originally entered under heading 3204, HTSUS, a synthetic coloring agent. The merchandise is a preparation of carotenoids, each of which is used as coloring matter. However, the product is not used in the U.S. as a coloring agent. Rather, the product contains palm oil, a food substance which cannot be described as coloring matter or a dye adjuvant. For instance, in HQ 962766, dated January 23, 2001, we found that a product called BetaVit 10% powder, composed of sugar, starch, vitamins and beta carotene, had been prepared as a dietary supplement and therefore was not classifiable as a coloring matter even though it contained beta carotene. In NY G89897, dated April 19, 2001, we found that Irione Solaire softgels containing beta-carotene and tocopherol solutions, vegetable oils and gelatin were classifiable as food preparations even though they contained beta- carotene. Lastly, in NY E88556, dated October 3, 2000, we found that two solutions of 99% oils and 1% beta-carotene were classified in heading 2106, HTSUS, due to the overwhelming presence of the oil, a foodstuff. As in the cases cited above, Caromin® 25% consists of 75% palm oil and is not primarily used as a coloring agent. It therefore can not be classified in heading 3203 or in heading 3204, HTSUS, as coloring matter.

Heading 2106 is a principal use provision (see HQ 964379, dated October 22, 2001). In E. M. Chemicals v. United States, 20 C.I.T. 382, 923 F. Supp. 202 (1996 Ct. Intl. Trade), the court explained the application of principal use provisions thus:

When applying a "principal use" provision, the Court must ascertain the class or kind of goods which are involved and decide whether the subject merchandise is a member of that class. See supra Additional US Rule of Interpretation 1 to the HTSUS. In determining the class or kind of goods, the Court examines factors which may include: (1) the general physical characteristics of the merchandise; (2) the expectation of the ultimate purchasers; (3) the channels of trade in which the merchandise moves; (4) the environment of the sale (e.g. the manner in which the merchandise is advertised and displayed); (5) the usage of the merchandise; (6) the economic practicality of so using the import; and (7) the recognition in the trade of this use (citations).

After entry, Caromin® 25% is filled into gelatin capsules or otherwise prepared for use as a dietary supplement. It consists of carotenoids and oil formulated for use, recognized as, advertised as and sold as a dietary supplement. Caromin® 25%, which contains beta-carotene, is not itself beta-carotene. It is a mixture of chemicals and other substances with nutritive value. It is used in the preparation of human foodstuffs. Hence, Caromin® 25% is classified in heading 2106, HTSUS, since it belongs to the class or kind of goods principally used in the preparation of foodstuffs and is not more specifically provided for elsewhere.

HOLDING:

Caromin® 25% is classified in subheading 2106.90.99, the provision for "Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other." The Protest is denied.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, 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 on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director

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