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HQ 088561


September 27, 1991

CLA-2 CO:R:C:F 088561 RFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 3003.90.0000

Mr. Melvin E. Lazar
Barnes, Richardson & Colburn
475 Park Avenue South
New York, NY 10016

RE: Cyanocobalamin USP triturated with dibasic calcium phosphate and cyanocobalamin USP triturated with mannitol

Dear Mr. Lazar:

This letter is in response to your request of December 3, 1990, on behalf of H. Reisman Corporation, concerning the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of (1) cyanocobalamin USP triturated with dibasic calcium phosphate and (2) cyanocobalamin USP triturated with mannitol.

FACTS:

There are two products. One will consist of cyanocobalamin USP (25 %) that has been triturated with dibasic calcium phosphate (75%). The other will consist of cyanocobalamin USP (25%) triturated with mannitol (75%). The trituration for both products will take place in a foreign trade zone. After entry from the foreign trade zone, the products will be blended into either a 3 to 5 percent or a 0.1 to 1 percent strength for use in foods and vitamin tablets.

In a July 8, 1991, letter, you indicate that the products that are admitted into the foreign trade zone are in a nonprivileged foreign status. Nonprivileged foreign status merchandise is classifiable in the character, condition and value as constructively transferred from a zone on an entry for consumption. 19 U.S.C. 81c(a) and 19 CFR 146.65(a)(2).

ISSUES:

(1) What is the tariff classification under the HTSUSA of cyanocobalamin USP (25 %) that has been triturated with dibasic calcium phosphate (75%)?

(2) What is the tariff classification under the HTSUSA of cyanocobalamin USP (25%) that has been triturated with mannitol?

LAW AND ANALYSIS:

Merchandise imported into the United States is classified under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The tariff classification of merchandise under the HTSUSA is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUSA and are to be considered statutory provisions of law for all purposes. See Sections 1204(a) and 1204(c) of the Omnibus Trade and Competitiveness Act of 1988 (19 U.S.C. 1204(a) and 1204(c)).

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule (i.e., (1) merchandise is to be classified under the 4-digit heading that most specifically describes the merchandise; (2) only 4-digit headings are comparable; and (3) merchandise must first satisfy the provisions of a 4-digit heading before consideration is given to classification under a subheading within this 4-digit heading) and any relative section or chapter notes and, provided such headings or notes do not otherwise require, then according to the other GRIs.

GRI 6 prescribes that, for legal purposes, GRIs 1 to 5 shall govern, mutatis mutandis, classification at subheading levels within the same heading. Therefore, merchandise is to be classified at equal subheading levels (i.e., at the same digit level) within the same 4-digit heading under the subheading that most specifically describes or identifies the merchandise.

The Explanatory Notes to the Harmonized Commodity Description and Coding System (hereinafter "Harmonized System") represent the official interpretation of the Customs Cooperation Council on the scope of each heading. See H.R. Conf. Rep. No. 100-576, 100th Cong., 2d Sess. 549 (1988); 23 Customs Bulletin No. 36, 3 (T.D. 89-90, September 6, 1989), 59 F.R. 35127 (August 23, 1989). Although not binding on the contracting parties to the Harmonized System Convention or considered to be dispositive in the interpretation of the Harmonized System, the Explanatory Notes should be consulted on the proper scope of the Harmonized System. Id.

A review of the chapters in the schedule reveals that the instant products may be classified in chapter 30. This chapter covers "pharmaceutical products." In this chapter, heading 3003 provides for "medicaments (excluding goods of heading no. 3002, 3005 or 3006) consisting of two or more constituents which have been mixed together for therapeutic or prophylactic uses, not put up in measured doses or in forms or packings for retail sale." Guidance concerning the coverage of this heading can be found in the Explanatory Notes thereto:

[Heading 3003]...covers medicinal preparations for use in the internal or external treatment or prevention of human or animal ailments. These preparations are obtained by mixing together two or more substances. However, if put up in measured doses or in forms or packings for retail sale, they fall in heading 3004.

See Explanatory Notes to Heading 30.03 to the Harmonized Commodity Description and Coding System.

In the instant case, both products are a mixture of two constituents that are ostensibly for use in the prevention of certain vitamin deficiencies. Therefore, the products appear to meet the terms of heading 3003; and, thus, they should be classified therein.

CONCLUSION:

Both of the above-described products are properly classified under statistical-reporting number 3003.90.0000, HTSUSA, which provides for medicaments (excluding goods of heading 3002, 3005 or 3006) consisting of two or more constituents which have been mixed together for therapeutic or prophylactic uses, not put up in measured doses or in forms or packings for retail sale, other. The general rate of duty is 6 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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