CLA-2 RR:CR:GC 961913ptl
Mr. Chris Reinke
Racing Pigeon Bulletin
American Racing Pigeon News
34 East Franklin Street
Bellbrook, OH 45305
RE: “Natural Vitamineral”, “Naturavit Plus”, and “Natural Electrolit” products for pigeons; NY 886743 revoked.
Dear Mr. Reinke:
In New York Ruling Letter (NY) 886743, issued to you on June 15, 1993, Customs ruled that certain multi-vitamin/mineral supplements for pigeons, identified as “Natural Vitamineral” and “Naturavit Plus,” were classified in subheading 3004.50.4000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Medicaments ... consisting of ”mixed or unmixed products for therapeutic or prophylactic uses, put up in measured doses or in forms or packings for retail sale: other medicaments containing vitamins or other products of heading 2936: containing vitamins synthesized wholly or in part from aromatic or modified aromatic industrial organic compounds: other.” That ruling also classified a mixture of electrolytes and glucose, identified as “Natural Electrolit,” in subheading 3004.90.6003, HTSUS, which provides for “Medicaments ... consisting of mixed or unmixed products for therapeutic or prophylactic uses, put up in measured doses or in forms or packings for retail sale: other: other: for veterinary use.”
Customs has reviewed this ruling and determined that those classifications are incorrect. Therefore, this ruling revokes NY 886743 and sets forth the correct classification of the three products. A notice of proposed revocation of New York Ruling Letter (NYRL) 886743 was published in Vol. 33, No. 21 of the Customs Bulletin dated May 26, 1999. No comments were received.
FACTS:
The articles are identified as:
“Natural Vitamineral” - a powdered compound of vitaminized minerals for pigeons, containing, among other things, vitamins A, D, B2, B12 and E. The product is described as serving to maintain mineral and vitamin reserves vital to a pigeon’s growth, fertility and metabolism. Reportedly, pigeons only ingest this product when they sense a deficiency in their diet. The product will be imported in small cardboard boxes for retail sale.
“Naturavit Plus” - a multi-vitamin liquid complex which “guarantees that the pigeon will receive a balanced supply of the entire range of vitamins, including the following, essential ones:” B1, D, A, E, and K. The product pamphlet indicates that regular administration protects pigeons against avitaminosis, unbalanced feeding, and will result in maximum racing performances. The product will be imported in plastic bottles for retail sale.
“Natural Electrolit” - a mixture of electrolytes and glucose for “rapid recovery after the flight.” The product pamphlet states that this product in an energy-drink which compensates for water and electrolyte depletion and progressively restores acid-base equilibrium. It also represents an immediate energy gain (glucose)), which markedly shortens the recovery period (after races). The product, in powdered form, will be imported put up in sachets for retail sale.
ISSUE:
What is the classification of nutritional feeding supplements for pigeons?
LAW AND ANALYSIS:
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 virtually all 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 generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS headings under consideration are as follows:
2309 Preparations of a kind used in animal feeding:
2309.90 Other:
Other:
Other:
Other:
2309.90.9500 Other.
3004 Medicaments (excluding goods of heading 3002, 3005 or 3006) consisting of mixed or unmixed products for therapeutic or prophylactic uses, put up in measured doses or in forms or packings for retail sale
3004.50 Other medicaments containing vitamins or other products of heading 2936:
3004.50.50 Other.
3004.50.5005 For veterinary use.
3004.90. Other.
3004.90.9090 Other:
3004.90.9003 For veterinary use.
The blend of vitamins and minerals in the products is designed as a dietary supplement for general maintenance of health and well-being of pigeons. There are no claims or indications of usage for the product’s being intended for the treatment of any specific condition or ailment. The product is intended to be added to food, not taken to cure or prevent any particular ailment or condition. The concentrations of vitamins and minerals in the mixture are comparatively low and do not reach levels found in therapeutic dosages which are usually only taken under the supervision and direction of a veterinarian.
Chapter 30, HTSUS, covers pharmaceutical products. Of special significance is note 1(a) to chapter 30, which states: “This chapter does not cover: (a) Foods or beverages (such as dietetic, diabetic or fortified foods, food supplements, tonic beverages and mineral waters) (section IV)”. Chapter notes are part of the legal text of the HTSUS, and are to be considered statutory provisions of law for all purposes. Because the chapter notes are mandatory authority for classification, merchandise described by note 1(a) to chapter 30 is excluded from classification in that chapter.
The exclusion of the instant products from chapter 30 is reinforced by the ENs to heading 30.04 which provides that:
Further this heading excludes food supplements containing vitamins or mineral salts which are put up for the purpose of maintaining health or well being but have no indication as to use for the prevention or treatment of any disease or ailment.
Inasmuch as these products are intended for animals, we turn to heading 2309, HTSUS, which provides for preparations of a kind used in animal feeding. The ENs to heading 23.09 state that the heading covers preparations designed to provide an animal with all the nutrient elements required to ensure a rational and balanced daily diet. The ENs further provide that the heading includes feeding preparations for birds.
Although the ENs state that vitamins are excluded from heading 23.09, that exclusion does not apply to the carefully blended and prepared mixtures under consideration. Excluded vitamins would be bulk, minimally processed vitamins which have been prepared for general, rather than specific use. The mixture under consideration is a food supplement containing vitamins, not a vitamin. EN 23.09 clearly indicates that the animal food preparations covered therein may contain vitamins (see, e.g., EN 23.09(II)(A)(3), (B)(1), and (C)(1)). The products being classified have been specially mixed and prepared for a highly defined use - the unique dietary and physiological requirements of racing pigeons.
HOLDING:
The products identified as “Natural Vitamineral”, “Naturavit Plus”, and “Natural Electrolit” are classified in subheading 2309.90.9095, HTSUS, which provides for: Preparations of a kind used in animal feeding: other: other: other: other: other.
NY 886743 is revoked. In accordance with 19 U.S.C.1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
John Durant, Director
Commercial Rulings Division