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HQ 089896

June 2, 1992

CLA-2 CO:R:C:F 089896 ALS


TARIFF NO.: 2936.26.0000

Area Director of Customs
New York Seaport Area
6 World Trade Center
New York, New York 10048

RE: Request for Further Review of Protest 1001-90-007183, dated August 22, 1990, Concerning Vitamin B-12 Eluate

Dear Ms. Maguire:

This ruling is on a protest that was filed against your decisions of May 25, 1990, June 29, 1990 and July 20, 1990, in the liquidation of entries covering the referenced product.


The article under consideration is a concentrated extract of vitamin B-12 isolated from a fermentation broth in which most of the cobalamin has been converted to cyanocobalamin. It is a mixture of cyanocobalamin, hydroxocobalamin and proteinaceous material, which is the remaining portion of the fermentation process used in the production of the vitamin. The product is a dark reddish/brown thick liquid which, at the time of importation, contains 3.3 percent vitamin B-12, 19.5 percent proteinaceous matter and 77.2 percent water. After importation the product is dried and standardized to a 2-3 percent strength with additives such as rice hulls, dried corn cob, silicon dioxide, and white mineral oil. It is further diluted with rice hulls to a strength of .4 to .5 percent vitamin B-12. The standardized product is sold to suppliers of premixes who supply premix products to the animal feed industry that is added in the production of animal feed for the control of vitamin deficiency and as an animal feed supplement.


Is the product under consideration a preparation of a kind used in animal feeding, a vitamin or a medicament?


Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the heading and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the heading and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

Entries covering the product were liquidated under the provision for vitamin B-12 in subheading 2936.26.0000, HTSUSA. Counsel disagrees with that classification and suggests 4 alternative subheadings for classification of the product. Counsel suggests subheading 2309.90.1050, HTSUSA, which covers mixed feeds or mixed feed ingredients used in animal feeding, subheading 2309.90.9000, HTSUSA, which covers other preparations of a kind used in animal feeding. Counsel alternatively suggests subheading 2936.90.0000, HTSUSA, which covers other vitamins or subheading 3003.90.0000, HTSUSA, which covers other medicaments of two or more constituents mixed together for prophylactic or therapeutic use.

Counsel notes that the product is an animal feed premix and should be classified as an ingredient for animal feed even though it is imported in a form which may need to be further diluted or formulated prior to introduction into the animal feed. He references Explanatory Note (EN) 23.09 which specifies that standardizing the strength of the product may take place subsequent to importation. He also states that Heading 2309, HTSUSA, is a use provision and that as between a use and an eo nomine provision, a use provision prevails.

In considering counsel's arguments in support of classifying the product as an animal feed premix, we note that the product, while it might, subsequent to importation, be formulated into a animal feed premix, it is not normally so used in its imported state. As indicated by counsel, the imported product, for commercial practicality and ease of handling, is first dehydrated and mixed with a neutral vegetable carrier. In
the protest counsel notes that, after importation, the product is first dried and standardized to a 2-3 percent strength with additives such as rice hulls, dried corn cob, silicon dioxide and white mineral oil and subsequently diluted with rice hulls to a strength of .4 to .5 percent vitamin B-12. While we accept counsel's statement that the product will ultimately be used in an animal feed premix, we note that the imported product must be dehydrated and diluted twice before it is commercially practical to use it for that purpose. The product is essentially the first separation of vitamin B-12 from its fermentation batch. Other than the fact that it has a large amount of protein by-products, no other process has yet been performed on the product to give it an animal food preparation character. Accordingly, we do not believe that the product, at the time of importation, can be considered to be preparation of a kind used in animal feeding. Classification in Chapter 23, HTSUSA, would not, therefore, be appropriate.

We next considered the propriety of classifying the product in Chapter 29, HTSUSA, under subheading 2936.26.0000, HTSUSA, as liquidated, as vitamin B-12, or under subheading 2936.90.0000, HTSUSA, as suggested by counsel, as other vitamins. The product contains two types of vitamin B-12 and proteinaceous material. Since it is economically prohibitive to remove the proteinaceous material and extract or insolate and purify the vitamin B-12 component of the product, the importer chooses not to remove the proteinaceous material and purify the vitamin B-12. We note that the product can be used for the purpose for which it is ultimately intended without such processing.

In considering whether this product can be classified under the provisions for vitamins contained in Chapter 29, HTSUSA, we considered the explanatory notes relative to that chapter and, in particular, those relative to Heading 2936. Chapter Note 1(a) to Chapter 29 specifies that the chapter covers separately chemically defined organic compounds, whether or not containing impurities. General Note (A) of the Chapter 29 EN's relative thereto specifies that the term "impurities" applies exclusively to substances whose presence results solely and directly from the manufacturing process. EN 29.36(H) describes the use of vitamin B-12, the sources therefor, and that such vitamin is normally composed of dark red crystals which are soluble in water.

Counsel, referencing EN 29.36(H), posits that the subject product, which is a non-crystalline black amorphous substance, is not covered by subheading 2936.26.00, HTSUSA, and that such
subheading is intended to cover only "crystalline" vitamin B-12 U.S.P. consumption grade for humans. He states that the suspension is not produced by dissolving crystals in water and the removal of water does not result in isolation of vitamin B-12 crystals. While the EN does describe vitamin B-12, as indicated by counsel, we do not agree with counsel's conclusion as to the interpretation thereof. We believe the description was meant to be illustrative and not restrictive. This is confirmed by the introductory paragraph to EN 29.36 which gives a list of products which are to be classified as provitamins or vitamins within the meaning of Heading 2936. It specifically states: "The list of products in each of the following groups is not exhaustive. The products listed are examples only."

Further, as indicated in Treasury Decision (TD) 54895(19), the addition of acetone to the concentrated water solution containing the vitamin B-12 gives crystalline vitamin B-12 which can be further purified by recrystallization from aqueous acetone. Thus the presence of acetone in the solution seems to be the ingredient that distinguishes crystalline from non- crystalline vitamin B-12. We presume that the addition of acetone to the subject product would similarly produce crystalline vitamin B-12.

Counsel's interpretation of EN 29.36(H) would also seem to be in direct conflict with the wording of Heading 2936, HTSUSA, and the relative EN's which clearly speak of vitamins as essential for both human and animal organisms.

The presence of proteinaceous material would not exclude the product from classification in Chapter 29, HTSUSA. Proteinaceous material would be impurities resulting solely or directly from the manufacturing process in accordance with General Note (A) to Chapter 29 of the Explanatory Notes. We further note that General Note (C) of the Explanatory Notes to Chapter 29, specifies that certain products remain classified in Chapter 29 even when they are not separately chemically defined compounds. Provitamins and vitamins (including concentrates and intermixes), whether or not in a solvent, are included. Since the product, as stated by counsel and confirmed by documentation, is a concentrated extract solution of vitamin B-12 isolated from the fermentation broth in which most of the cobalamins have been converted to cyanocobalamins, the concentrate would appear to be covered by EN 29.36(b). The Note indicates that "Concentrates may be used as such (e.g., for adding to animal feeding stuffs),
or they may be worked up for the isolation of the vitamin." In view of these provisions and the fact that the product is to be used as a vitamin, even though it has a significant quantity of proteinaceous material, it would appear proper to consider this product as a form of vitamin. While counsel has concluded that the product is mixed and suggested subheading 2936.90.0000, HTSUSA, as a possible classification for the product, we believe that the product, if classifiable under Heading 2936, HTSUSA, would more specifically be covered by subheading 2936.26.0000, HTSUSA. We believe that since the mixture involved here is a mixture of different types of vitamin B-12, it would still be considered as an unmixed product.

Prior to reaching a conclusion on this matter, we next considered the propriety of classifying the product in subheading 3003.90.0000, HTSUSA, as a medicament containing two or more constituents which are not put up in measured doses or packaged for retail sale. It is a mixture of two types of vitamin B-12 and proteinaceous material which is meant to maintain a level of nutrition when placed in animal feed premixes. The product is a mixture of two or more constituent elements produced as a by-product to the fermentation process and it is to be used for therapeutic or prophylactic uses and not put up for retail sale. Thus, it appears that the product could be considered to be a partially formulated medicament used for veterinary prophylactic purposes. It might also be considered as an intermediate stage manufacture of crystalline vitamin B-12.

Since the provision for vitamins more specifically covers the product than does the other medicament provision, we believe it is more appropriate to classify the product under the former provisions.


Vitamin B-12 eluate which will be dehydrated, standardized and diluted subsequent to importation so that it can be incorporated into animal feed premix is classifiable under subheading 2936.26.0000, HTSUSA. The eluate is subject to a general rate of duty of 16.2 percent ad valorem.

Since the rate of duty under the classification indicated above is the same as the liquidated rate, you are instructed to
deny the protest in full. A copy of this ruling should be attached to Customs Form 19 and provided to the protestant as part of the notice of action on the protest.


John Durant, Director
Commercial Rulings Division

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