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NY M82324




May 12, 2006

CLA-2-21:RR:NC:N2:228 M82324

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.9998

Mr. John Peterson
Neville Peterson LLP
17 State Street
New York, NY 10004

RE: The tariff classification of a dietary supplement from Japan

Dear Mr. Peterson:

In your letter dated May 1, 2006, on behalf of NZymeCeuticals Inc., Pagosa Springs, CO, you requested a tariff classification ruling.

Samples and technical literature accompanied your letter. The samples were examined and disposed of. The product, Natto Super Kinase II, consists of gelatin capsules containing fermented soybean extract. It will be marketed as a dietary supplement for human consumption, consumed orally, claimed to promote general health and well-being.

In your letter, you suggest the product should be classified in either subheading 3507.90.70, Harmonized Tariff Schedule of the United States (HTSUS), the provision for “other” enzyme preparations, or subheading 3002.90.1000, HTSUS, as “ferments.” We disagree. In our opinion, subheading 3507.90.70 will not apply because the capsules do not retain the character of a raw material. Rather, they are offered for sale as a finished product to be used as a dietary supplement. Regarding your suggested alternate classification as “ferments,” 3002.90.1000, HTSUS, Stedman's Medical Dictionary, 27th Edition, defines “ferment” as:

An agent that causes fermentation (e.g., lactic ferments used in the preparation of yogurt, kefir, etc.; acetic ferments used for making vinegar; moulds for the manufacture of various antibiotics).

To our knowledge, the imported capsules do not cause fermentation.

The applicable subheading for this merchandise will be 2106.90.9998, HTSUS, which provides for food preparations not elsewhere specified or includedotherotherother. The rate of duty will be 6.4 percent ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at 301-575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Stanley Hopard at 646-733-3029.

Sincerely,

Robert B. Swierupski
Director,

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