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HQ 966213

March 18, 2004

CLA-2 RR:CR:GC 966213ptl


TARIFF NO.: 2106.90.9998

Area Director
JFK International Airport Area
C/o Chief, Liquidation and Protest Branch Building 77
JFK International Airport
Jamaica, New York 11430

RE: Protest 4701-01-100390, Beta-Carotene 30% Oil Suspension

Dear Area Director:

This is our response to Protest 4701-01-100390, filed by counsel, on behalf of the H. Reisman Corporation, against your classification of a product identified as Beta-Catrotene 30% Oil Suspension under the Harmonized Tariff Schedule of the United States (HTSUS).


This protest concerns five entries; 315-7118xxx-4, 315-7119xxx-0, 315-7119xxx-1, 315-7121xxx-0 and 315-7130xxx-8 which were entered between February 2000 and March 2001. At entry, the importer identified the merchandise as being Provitamins, unmixed and classified the goods in subheading 2939.10.00, HTSUS, which provides for provitamins and vitamins, natural or reproduced by synthesis; provitamins, unmixed. The entries were liquidated on September 7, 2001, and the goods were classified in subheading 2106.90.99, HTSUS, the provision for other food preparations, not elsewhere specified or included. Counsel filed a timely protest of the classification on December 6, 2001. Additional arguments in support of the protest were filed by counsel on March 20, 2002.

The goods under protest are described by protestant as consisting of natural Beta-Carotene in a soy oil suspension. The merchandise is to be used as an ingredient in vitamin dietary supplements.


What is the classification of Beta-Carotene 30% oil suspension?


Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied in order.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS subheadings under consideration are as follows:

2106 Food preparations not elsewhere specified or included:

2106.90 Other:

2106.90.99 Other

2936 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:

2936.10.00 Provitamins, unmixed

Counsel's principal contention is that classification of the imported compounds of standardized Beta-Carotene and vegetable oil in subheading 2936.10.00, HTSUS, is supported by the language of the ENs to Chapter 29 which state, as follows:

"Vitamins are active agents, usually of complex chemical composition, which are obtained from outside sources and are essential for the proper functioning of human or other animal organisms. They cannot be synthesised by the human body and must therefore be obtained in final or nearly final form (provitamins) from outside sources."

Counsel contends that because the Beta-Carotene is in the form of a provitamin, which is a vitamin in "nearly finished form," it is described by the terms of the EN. Because the ENs later provide, in relevant part:

This heading includes:

(a) Provitamins and vitamins,

(d) The above products diluted in any solvent (e.g., ethyl oleate, propane-1,2-diol, ethanediol, vegetable oils).
counsel contends that insofar as the imported product is a provitamin mixed with a vegetable oil, it is again described by the language of the ENs.

Should CBP not accept the argument that the product is described by the terms of subheading 2936.10.0000, HTSUS, and thus be classified by virtue of GRI 1, counsel's analysis proceeds to discuss GRI 2(b) and GRIs 3(a) and (b).

Counsel cites what he terms the pertinent provisions of the GRIs which are:

GRI 2(b):

(b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.

3. When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

Counsel argues that the product should be looked at for classification purposes as a composite good, specifically a mixture of a provitamin and a vegetable oil. If this were done, the cited provisions of the GRI would come into consideration. Counsel states that by application of GRI 3(a) which instructs that when classifying a mixture of composite goods, the heading which provides the most specific description of the product should be used. In this instance, counsel states that the description of the product as a provitamin (heading 2936) is the "most specific."

We disagree with counsel's analysis of the issue for the following reasons. This argument fails to take into account the prefatory language of GRI 3 which requires that before applying GRI 3(a), the product must be "prima facie, classifiable under two or more headings." Counsel has indicated he considers heading 2936, HTSUS, the correct heading for his product. However, he does not indicate which other headings he considers for the product. In order to apply GRI 3, there must be at least two competing headings. Because the product contains Beta-Carotene, a provitamin, and vegetable oil, the competing provisions he might want us to consider are heading 1517, HTSUS, which provides for edible mixtures or preparations of animal or vegetable fats or oils. Additionally, we should not exclude the heading in which CBP classified the product, namely, 2106, HTSUS, which provides for food preparations not elsewhere specified or included.

In order for GRI 3(a) to apply, the product must be classifiable in more than one heading. However, as we will explain in the following discussion, the subject product is not eligible for classification in either of the competing headings proposed by counsel. The instant Beta-Carotene oil suspension is not classifiable in heading 1517, HTSUS, because it is not a mixture of vegetable oils. It is a suspension of a provitamin in oil. Thus, heading 1517, HTSUS, is not a competing heading.

The relevant portion of the ENs to heading 29.36 not cited by counsel, provide, in part, as follows:

The products of this heading may be stabilised for the purposes of preservation or transport : - by adding anti-oxidants,
- by adding anti-caking agents(e.g., carbohydrates), - by coating with appropriate substance (e.g., gelatin, waxes or fats), whether or not plasticised, or - by absorbing on appropriate substances (e.g., silicic acid), provided that the quantity added or the processing in no case exceeds that necessary for their preservation or transport and that the addition or processing does not alter the character of the basic product and render it particulary suitable for specific use rather than for general use. [Emphasis in original]

In his argument, counsel states specifically that the product is prepared in such a manner so that "[T]his form is suitable for use by the Importer's customers to make finished dietary and nutritional supplement products, the Importer's intended end-use of its product." Clearly, the product under consideration has been prepared in such a manner to render it particularly suitable for a specific use. The percentage of Beta-Carotene in the suspension is carefully controlled. The oil used is not for preservation or transportation purposes, but rather specifically selected for the end-use to which the product is intended.

Substances classifiable in Chapter 29 must be separate chemically defined organic compounds or isomers thereof (Chapter note 1(a)). Here, the Beta-Carotene is a chemically defined organic compound. However, the soy oil which constitutes 70 percent of the overall product is not. As stated above, the oil has been added, not for transport or preservation of the Beta-Carotene, but to render the product suitable for use by customers.

In HQ 965699, dated September 25, 2002, CBP addressed the classification of an oil suspension of Beta-carotene, Alpha-Carotene and other carotenoids in palm oil. The discussion contained in that ruling further reinforces the above determination that the instant Beta-Carotene and vegetable oil suspension which is to be used as an ingredient in human food supplements is not a product of subheading 2936.10, HTSUS.

Because the product is not, prima facie, classifiable in two or more headings, it is not classified according to GRI 3. The Beta-Carotene suspension has been prepared for use as an ingredient in vitamin dietary supplements. The ENs to heading 21.06 provide, in subparagraph (B) that the heading covers "Preparations consisting wholly or partly of foodstuffs, used in the making of beverages or food preparations for human consumption." The vitamin dietary supplements are food preparations for human consumption. Accordingly, by application of GRI 1, the Beta-Carotene suspension is properly classified in subheading 2106.90.99, HTSUS, as a food preparation.


Natural Beta-Carotene 30% suspension in soy oil is classified in subheading 2106.90.99, which provides for food preparations, not elsewhere specified or provided; other; other; other; with a 2001 duty rate of 6.4% as valorem.

The protest should be DENIED. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.


Myles B. Harmon, Director

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