CLA-2 RR:CR:GC 960867 / 960920 MGM
Area Port Director
U.S. Customs Service
6269 Ace Industrial Dr.
Cudahy, Wisconson 53110
Re: Protests 3701-97-100003 and 3701-97-100023; "Carmine #52"
Food Colorant; "MicroCap" Carmine Food Colorant
Dear Port Director:
This is our decision on Protests 3701-97-100003 ("Carmine
#52 food colorant) and 3701-97-100023 ("MicroCap" carmine food
colorant), concerning your classification decision regarding two
carmine-based food coloring products under the Harmonized Tariff
Schedule of the United States (HTSUS). In preparing this
decision, consideration was given to arguments presented at a
meeting held at Customs Headquarters on July 23, 1998, as well as
submissions of counsel for the protestant dated January 23, 1997,
March 7, 1997, June 17, 1997, August 10, 1998, and August 11,
1998. All HTSUS provisions discussed below were those in effect
in 1996, when the goods were entered.
FACTS:
The subject commodities are carmine-based food coloring
products. Carmine is "an aluminum lake of the pigment from
cochineal." Hawley, The Condensed Chemical Dictionary, 10th ed.
A lake is an organic pigment produced by the interaction of an
oil-soluble organic dye, a precipitant, and an absorptive
inorganic substrate. Lakes are insoluble in water. Hawley.
Cochineal is "a red coloring matter consisting of the dried
bodies of the female insects of Coccus cacti." Hawley.
Cochineal contains 10 to 20% of the coloring matter carminic acid
(CAS # 1260-17-9 and CAS # 1390-65-4). Cochineal carmine lake
is a brilliant red pigment made by precipitating a mixture of
cochineal and alum (aluminum potassium sulfate). Brady and
Clauser, Materials Handbook, 11th ed., at 197.
Customs Laboratory Reports (No. 3-97-30347-001 dated 4-21-97
(amending No. 3-96-30240-001); No. 3-97-30385-001 dated 5-23-97),
state that the "Carmine #52" food colorant is a preparation based
on carmine, an aluminum lake of carminic acid. However this
product differs from a lake in that it is water soluble.
The "MicroCap" carmine food colorant is formed by
microencapsulation of the "Carmine #52" food colorant within a
matrix resistant to oxidation. Customs Laboratory Report 3-97-30004-001, dated November 18, 1996, states that the sample "is a
preparation based on carmine, an aluminum lake of carminic acid."
Protestant was directed to enter the "Carmine #52" food
colorant under subheading 3205.00.4020, HTSUS, "Color lakes;
preparations as specified in note 3 to this chapter based on
color lakes: Other: Products described in additional U.S. note 3
to section VI: red." Customs classification was later changed to
subheading 3205.00.15, HTSUS, "Color lakes...: Carmine: Other."
Both subheadings have a 1996 rate of duty of 13.3% ad valorem.
Protestant was directed to enter the "MicroCap" Carmine food
colorant under subheading 3205.00.15, HTSUS. Protestant
originally argued that the proper classification for both items
is subheading 3205.00.05, HTSUS, "Color lakes...: Carmine: Food
coloring solutions, containing cochineal carmine lake and paprika
oleo resins, but not including any synthetic organic coloring
matter," and, in the alternative, that the merchandise should be
classified in heading 3203, HTSUS, as coloring matter of animal
origin. Protestant has since abandoned its argument in favor of
classification in subheading 3205.00.05, HTSUS, and now relies
solely upon its argument in favor of classification under heading
3203, HTSUS.
The four entries which are the subject of Protest 3701-97-100003 were made from May 15, 1996, to July 26, 1996, and
liquidated from October 25, 1996, to November 15, 1996. A
protest was timely filed on January 23, 1997. The eight entries
which are the subject of Protest 3701-97-100023 were made from
May 2, 1996, to December 20, 1996. They were timely protested on
April 30, 1997.
ISSUE:
Whether carmine-based food coloring products are properly
classifiable under subheading 3205.00.15, HTSUS.
LAW AND ANALYSIS:
Merchandise imported into the U.S. is classified under the
HTSUS. Tariff classification is governed by the principles set
forth in the General Rules of Interpretation (GRIs) and, in the
absence of special language or context which requires otherwise,
by the Additional U.S. Rules of Interpretation. The GRIs and the
Additional U.S. Rules of Interpretation are part of the HTSUS and
are to be considered statutory provisions of law.
GRI 1 requires that classification be determined first
according to the terms of the headings of the tariff schedule and
any relative section or chapter notes and, unless otherwise
required, according to the remaining GRIs taken in order. GRI 6
requires that the classification of goods in the subheadings of
headings shall be determined according to the terms of those
subheadings, any related subheading notes and mutatis mutandis,
to the GRIs. In interpreting the HTSUS, the Explanatory Notes
(ENs) of the Harmonized Commodity Description and Coding System
may be utilized. The ENs, although not dispositive or legally
binding, provide a commentary on the scope of each heading, and
are generally indicative of the proper interpretation of the
HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The following subheadings are relevant to the classification
of these food coloring products:
3203.00 Coloring matter of vegetable or animal origin (including
dyeing extracts but excluding animal black), whether or not
chemically defined; preparations as specified in note 3 to this chapter based
on coloring matter of vegetable or animal origin:
3203.00.10 Annato, archil, cochineal, cudbear, litmus, logwood and
marigold meal
3203.00.80 Other
3205.00 Color lakes; preparations as specified in note 3 to this
chapter based on color lakes:
Carmine:
3205.00.15 Other
Protestant argues that the merchandise should be classified
in heading 3203, HTSUS, either under subheading 3203.00.10, or
subheading 3203.00.80. EN 32.03 (2) states that "cochineal
extract obtained by extraction generally with acidified water or
ammonia solution, from cochineal insects" is coloring matter of
animal origin. These products contain cochineal extract obtained
in such a manner. This heading is not limited to coloring matter
of animal origin, such as cochineal extract, but also includes
preparations based on coloring matter, of a kind used for
coloring any material or used as ingredients in the manufacture
of coloring preparations. Legal Note 3, Chapter 32. These food
colorants are preparations based on cochineal, which is matter of
animal origin, thus they are described by heading 3203, HTSUS.
Within heading 3203, HTSUS, these products are best
classified in subheading 3203.00.80, HTSUS. "An eo nomine
provision which does not specifically provide for preparations
does not encompass preparations within its ambit." Lynteq, Inc.
v. U.S., 976 F.2d 693, 697 (CAFC 1992). The food colorants are
preparations based upon cochineal, thus they do not fall within
the eo nomine provision for "cochineal" and, within heading 3203,
are best classified in the residual provision, subheading
3203.00.80, HTSUS.
Customs liquidated the entries in question under heading
3205, HTSUS, the heading for color lakes and preparations based
on color lakes. Color lakes include "cochineal carmine lake,
generally obtained by treating an aqueous solution of cochineal
extract with alum." Production of both food coloring products
includes treatment of cochineal extract with alum, as well as
other chemical compounds, followed by several other production
processes. The "Carmine #52" product is described by the
protestant as "not a true lake, although it possesses certain
ingredients contained in carmine lake, such as aluminum,
cochineal, and calcium." (Supplemental Documents in Support of
Protests Challenging Classification of Two Cochineal Products,
August 11, 1998, p. 2.) Heading 3205, HTSUS, encompasses
preparations based on color lakes, of a kind used for coloring
any material or used as ingredients in the manufacture of
coloring preparations. Legal Note 3, Chapter 32. Both items of
merchandise are preparations based on cochineal carmine lake, a
color lake, and thus fall within heading 3205. Within this
heading they fall within the residual provision for carmine
neither food coloring product contains paprika oleo resins.
Thus, the food colorants are described by two headings.
Where merchandise is prima facie classifiable under two headings,
the heading which provides the more specific description is
preferred to the heading providing a more general description.
GRI 3 (a). Here, the merchandise is described more particularly
as a preparation based on a color lake. All products based on
cochineal carmine lake contain cochineal extract, however not all
products based on cochineal contain cochineal carmine lake.
"Preparations based on cochineal carmine lake" is a more narrow
and specific category than preparations based on cochineal.
Protestant also argues, in the alternative, that
classification of carmine-based food colorants is controlled by
New York Ruling Letter (NY) 801341, dated September 20, 1994. A
ruling letter issued by the Customs Service represents the
official position of Customs with respect to the particular
transaction described therein and to articles whose description
is identical to the description set forth in the ruling letter.
19 CFR 177.9(a), (b)(2). NY 801341 stated that "the applicable
subheading for carminic acid will be 3203.00.5000, Harmonized
Tariff Schedule of the United States." This ruling letter is
inapplicable to the case at hand because the food colorants are
not identical to carminic acid. Carminic acid (CAS# 1260-17-9)
has the formula C22H20O13 and is the major pigment of cochineal,
the red coloring matter extracted from the dried bodies of the
female insect of the species Coccus cacti. Walford, Development
in Food Colors, Vol. 1. Cochineal carmine lake is made by
precipitating a mixture of cochineal and alum. EN 32.05 makes it
clear that the fixation of the coloring matter (cochineal) on the
substrate (alum) makes cochineal carmine lake separate and
distinct from carminic acid for tariff purposes. Several
additional chemical compounds are added to cochineal carmine lake
and other process steps are performed before "Carmine #52" food
colorant is formed. The "MicroCap" product is made by
microencapsulation of the "Carmine #52" product. These
additional steps further differentiate the products from carminic
acid. These food colorants contain carminic acid but are not
equivalent to it.
There is some slight ambiguity as to what commodity is being
classified in NY 801341. The ruling letter states that it is in
regard to "the tariff classification of carminic acid, CI#
75470." Several sources list carminic acid and CI# 75470 as
synonyms. Rempe and Santucci, CTFA International Color Handbook,
2nd ed.; Howard and Neal, Dictionary of Chemical Names and
Synonyms. The CTFA International Color Handbook, under the
heading CI 75470, lists the CAS numbers as 1390-65-4 and 1260-17-9 and describes the compound as "aluminum lake of cochineal."
However, these CAS numbers both correspond to carminic acid,
C22H20O13, not the aluminum lake. In addition, the body of the
ruling letter mentions only carminic acid, not any lake compound.
Thus, NY 801341 should be construed to apply only to carminic
acid.
HOLDING:
The protest should be Denied. Carmine-based food colorants
are classified under subheading 3205.00.15, HTSUS.
In accordance with section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office together
with the Customs Form 19, Notice of Action, to the Protestant no
later than 60 days from the date of this letter. Any
reliquidation of the entry in accordance with this decision must
be accomplished prior to the mailing of the decision. Sixty days
from the date of this decision, the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and to the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division