CLA-2 CO:R:C:F 089896 ALS
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.
FACTS:
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.
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ISSUE:
Is the product under consideration a preparation of a kind
used in animal feeding, a vitamin or a medicament?
LAW AND ANALYSIS:
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
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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
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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),
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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.
HOLDING:
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
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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.
Sincerely,
John Durant, Director
Commercial Rulings Division