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HQ 967061




May 12, 2004

CLA-2 RR:CR:GC 967061AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.9700

Port Director
Customs and Border Protection
Building #77
Jamaica, New York 11430

RE: Protest 4701-04-100032; Beta-Tab® 20%

Dear Port Director:

This is our decision on Protest 4701-04-100032, dated January 14, 2004, filed by Counsel on behalf of Roche Vitamins Ltd., against your decision in the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of Beta-Tab® 20%.

FACTS:

The subject merchandise consist of fine granular free-flowing powder containing sucrose (CAS #57-50-1), B-Carotene crystalline (CAS #7235-40-7), corn starch (CAS #9005-25-8), dl-a-Tocopherol (CAS #10191-41-0), and two stabilizers, ascorbyl palmitate (CAS#137-66-6) and sodium ascorbate (CAS 134-03-2).

The protested merchandise was entered January 13, 2003 and liquidated on December 5, 2003, under subheading 2106.90.97, the provision 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: Other." The protest was timely filed on January 13, 2004.

Protestant claims classification of the merchandise in subheading 3204.19.35, HTSUS, the provision for coloring matter, or, alternatively, subheading 2936.10.00, HTSUS, the provision for vitamin B.

ISSUE:

Whether a beta-carotene preparation for ingestion is classified as coloring matter?

LAW AND ANALYSIS:

Merchandise imported into the United States 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 for all purposes.

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 their appropriate 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 understanding the language of 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 HTSUS provisions under consideration are as follows:

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: 2106.90.9700 Other."

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:

2936.10.0000 Provitamins, unmixed

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:

Other:

3204.19.35 Beta-carotene and other carotenoid coloring matter

We have discussed the issue of beta carotene preparations used for ingestion in HQs 965782, dated October 22, 2002, and 962766, dated January 23, 2001. We incorporate the reasoning in those rulings here.

Put simply, beta-carotene preparations for ingestion do not belong to the class or kind of goods described as coloring matter. Their ingredients are not those of dye adjuvants; they are not sold, advertised, or displayed in the manner of colorants; they are not used, recognized for use, or expected to be used as dyes or colorants. See United States v. Carborundun Company, 536 F.2d 373(1976), cert. Denied, 429 U.S. 979 (1976). Nor do these preparations meet the test of note 1 to chapter 29 in that they are not separate chemically defined compounds with or without impurities. Rather, they are carefully tailored food preparations ingested for the general health and well-being of the user.

Furthermore, similar products are currently before the Court of International Trade. See, e.g., court no 01-00118 (Lucarotin 1%), court no. 01-01094 (BetaVit 10%), and court nos. 01-01094 and 02-00259 (BetaVit 20%). Hence, liquidation of this merchandise should be suspended pending the outcome of the litigation.

HOLDING:

The Protest is DENIED. BetaTab® 20% is classified in subheading 2106.90.9700, HTSUS, the provision 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: Other." However, liquidation of this merchandise should be suspended pending the outcome of the litigation.

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, Director

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