CLA-2 RR:CR:GC 962059 MGM
Area Port Director
U.S. Customs Service
200 Granby St.
Ste. 839
Norfolk, Virginia 23510
Re: Protest 1401-97-100178; "Ericssons Alka-Mine Coral Calcium"
Dear Port Director:
This is our decision on Protest 1401-97-100178, concerning
your classification of "Ericssons Alka-Mine Coral Calcium" under
the Harmonized Tariff Schedule of the United States (HTSUS). In
preparing this decision, consideration was given to
correspondence from the protestant dated December 2, 1997, and
September 2, 1998.
FACTS:
The subject commodity is "Ericssons Alka-Mine Coral
Calcium," also described as "calcium carbonate bags," "calcium
carbonate bags (HTN Gold)," and "calcium carbonate bags (water
purifying bags)." Natural coral sand is gathered from the ocean
floor off Okinawa, Japan, cleaned, and screened to size. The
product is then packed in individual fiber bags, one gram per
bag, and six such bags are placed in foil pouches for retail
sale.
The protestant states that when added to tap water the
commodity removes chlorine, making the water taste better.
Advertising information describes the merchandise as an "additive
for healthy water" and claims that "it will normally raise the pH
of the water to an alkaline level within 1 to 10 minutes."
The protestant had the product analysed by two independent
laboratories. The results of the first analysis are as follows:
calcium carbonate (CaCO3), 87.3%; magnesium carbonate (MgCO3),
11.8%; L-ascorbic acid, 0.8%. The results of the second analysis
are similar: calcium carbonate, 87.1%; magnesium carbonate,
11.8%; L-ascorbic acid, 0.8%. An advertising brochure lists the
ingredients per 1 gram bag as coral calcium 973 mg, magnesium 22
mg, and L-ascorbic acid 5 mg. Customs Laboratory Report 4-96-20641, dated February 29, 1996, states "The sample is small
packets containing tan granular material...Laboratory analysis
indicates the
product contains the constituents as stated by the importer. The
coral calcium' is principally in the form of calcium carbonate."
A "Certificate of Content" from Marine Coral Co., Ltd., dated
October 26, 1994, states that the L-ascorbic acid is
synthetically made from glucose, thus the L-ascorbic acid does
not occur naturally, but rather is added after harvesting.
Protestant was directed to enter the merchandise under
subheading 2106.90.9998, HTSUS, the residual provision for "Food
preparations not elsewhere specified or included." Protestant
argues that the proper classification is subheading 2509.00.2000,
HTSUS, the provision for "Chalk" other than "crude" chalk.
The seventeen entries whose classification is here protested
were made from December 1995 to July 1997, and liquidated on
September 12, 1997. A protest was timely filed on December 8,
1997.
ISSUE:
Whether "Ericssons Alka-Mine Coral Calcium" is classified
under subheading 2106.90.9998, HTSUS, the residual provision for
food preparations, or subheading 2509.00.2000, HTSUS, the
provision for chalk.
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
HTSUSA. See, T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The following headings are relevant to the classification of
this product:
0508 Coral and similar materials, unworked or simply prepared but not
otherwise worked; shells of molluscs, crustaceans or echinoderms and
cuttlebone, unworked or simply prepared but not cut
to shape, powder and waste thereof
2106 Food Preparations not elsewhere specified or included
2106.90 Other
Other
Other
Other
2106.90.99 Other
Other
Other
Other
2106.90.9998 Other
2509 Chalk
2509.00.20 Other
The entries of "Ericssons Alka-Mine Coral Calcium" were
liquidated under heading 2106, HTSUS, which provides for "Food
preparations not elsewhere specified or included." This heading
includes preparations for use, either directly or after
processing (such as cooking, dissolving or boiling in water,
milk, etc.) for human consumption. EN 21.06 (A). Specifically
included within this heading are mixtures of plant parts "which
are not consumed as such, but which are of a kind used for making
herbal infusions or herbal teas' including products which are
claimed to offer relief from ailments or contribute to general
health and well-being," EN 21.06 (B) (14), thus a product need
not be consumed in its entirety to be classified in heading 2106,
HTSUS.
The importer, in the packaging which accompanies the
product, states "This product may help the body and blood to
maintain an optimum alkaline pH level," and the product "will
normally raise the pH of the water to an alkaline level within 1
to 10 minutes." This increase in alkalinity comes about as a
result of the dissociation of magnesium and calcium cations from
carbonate anions, and the subsequent abstraction of a proton (H+)
from water by the carbonate anions leaving hydroxide ions (OH- )
in solution. Magnesium carbonate and calcium carbonate are only
slightly soluble in water (MgCO3 Ksp = 1 x 10-15; CaCO3 Ksp = 8.7 x
10-9). Zumdahl, Chemistry, third edition. Nonetheless the
concentration of carbonate ion is sufficently high to raise the
pH of an aqueous solution to approximately 10.
In addition to dissolved magnesium, calcium, and carbonate,
the solution will contain L-ascorbic acid (vitamin C). L-ascorbic acid dissolves readily in water. CRC Handbook of
Chemistry and Physics, 78th edition.
When added to water, most of the "Ericssons Alka-Mine Coral
Calcium" will remain in solid form, however a small amount will
dissolve and become part of an aqueous solution to be consumed.
Thus, this product is somewhat similar in nature to a teabag and
is described by heading 2106, HTSUS. However, heading 2106,
HTSUS, provides for "food preparations not elsewhere specified or
included," thus, if this merchandise can be properly classified
in another heading, it is excluded from heading 2106, HTSUS.
Heading 0508, HTSUS, provides for coral and similar
materials unworked or simply prepared but not otherwise worked.
Coral is "the calcerous or horny skeletal deposit produced by
anthozoan or rarely hydrozoan polyps." Webster's Ninth New
Collegiate Dictionary. The Explanatory Notes state that heading
0508, HTSUS, covers "coral, unworked, or from which only the
outer crust has been removed." EN 05.08 (1). Here, the coral is
in the form of powder and contains synthetically made L-ascorbic
acid. This goes beyond being "simply prepared," thus the
merchandise is excluded from this heading.
The protestant argues that the merchandise is classified
under heading 2509, HTSUS, which provides for chalk. EN 25.09
states "Chalk is a naturally occurring variety of calcium
carbonate, composed predominantly of the shells of aquatic micro-organisms." Chemical dictionaries define chalk as "a very fine-grained white rock composed of the skeletal remains of
microscopic sea creatures, such as plankton, and consisting
largely of calcium carbonate (CaCO3)," Daintith, A Dictionary of
Chemistry, third edition, and "A natural calcium carbonate
composed of the calcerous remains of minute marine organisms,"
Hawley, The Condensed Chemical Dictionary, 10th edition.
"Ericssons Alka-Mine Coral Calcium" is composed largely of the
remains of marine organisms, however it contains a significant
amount of magnesium carbonate as well as L-ascorbic acid as an
additive. The amount of magnesium carbonate as well as the L-ascorbic acid additive preclude classification as "chalk."
The instant case is distinguishable from NY A84999, dated
July 24, 1996, (where "a calcium based material mined in Germany
and not treated with any chemicals or additives, and not washed
or heated during the process or prior to packaging for shipment"
was classified as chalk powder in subheading 2509.00.20, HTSUS)
due to the presence of the L-ascorbic acid chemical additive.
HOLDING:
The protest should be Denied. Ericssons Alka-Mine Coral
Calcium product is classified in subheading 2106.90.9998, 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