CLA-2 OT:RR:CTF:TCM H065723 CkG
Port Director
U.S. Customs and Border Protection
Port of Buffalo
111 West Huron Street
Buffalo, NY 14202
RE: Application for Further Review of Protest No. 0901-2009-100204;
classification of Rovimix® Stay-C®35
Dear Port Director,
This is in response to the Application for Further Review of Protest No. 0901-2009-100204 filed on behalf of DSM Nutritional Products (‘Protestant”), contesting the Customs and Border Protection’s (CBP) classification and liquidation of Rovimix® Stay-C®35 in heading 3824, HTSUS, as an “other” chemical preparation.
The subject merchandise was entered between October 30, 2007, and October 31, 2008, at the Port of Buffalo. CBP liquidated the entries on October 24, 2008, in heading 3824, HTSUS. Plaintiff claims classification in heading 2936, HTSUS.
FACTS:
Rovimix® Stay-C® 35 is described as a beige spray-dried powder consisting primarily of the monophosphate ester of L-asorbic acid as well as small quantities of diphosphate and triphosphate ester, silicone dioxide, and inorganic compounds produced by the reaction of ascorbic acid with calcium and sodium hydroxide. DSM’s product data sheet indicates that 99% of the mixture consists of the phosphorylated sodium/calcium L-ascorbate and 1% silicone dioxide. The esterification of the ascorbic acid prevents oxidation, and the silicone dioxide is added for good flowability and mixability. Rovimix® Stay-C® 35 is advertised for inclusion in feeds for aquaculture species. It can also be used in feeds produced for land-based animals and pets.
Rovimix® Stay-C® 35 is described as mostly insoluble in water.
ISSUE:
Whether Rovimix® Stay-C® 35 is classifiable as a vitamin C derivate of heading 2936, HTSUS, or as an “other” chemical preparation of heading 3824, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 0901-2009-100204 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a prior CBP ruling with respect to the same or substantially similar merchandise.
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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 2 through 6 may then be applied in order.
The Harmonized Commodity Description and Coding System Explanatory Notes
(“ENs”) constitute the official interpretation of the HTSUS. While not legally binding or
dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS
and are generally indicative of the proper interpretation of these headings at the
international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
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:
2936.27.00: Vitamin C (Ascorbic acid) and its derivatives
2936.90.01: Other, including provitamins and natural concentrates
* * * * *
3824: Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included:
3824.90: Other:
Other:
Other . . . .
* * * *
Chapter 29 Note 1 provides, in pertinent part:
Except where the context otherwise requires, the headings of this chapter apply only to:
(a) Separate chemically defined organic compounds, whether or not containing
impurities…
…
The products mentioned in (a), (b), (c), (d) or (e) above with an added
stabilizer (including an anticaking agent) necessary for their preservation or
transport;
* * * *
General EN (A) to Chapter 29 provides as follows:
Separate chemically defined compounds containing other substances deliberately added during or after their manufacture (including purification) are excluded from this Chapter. Accordingly, a product consisting of saccharin mixed with lactose, for example, to render the product suitable for use as a sweetening agent is excluded (see Explanatory Note to heading 29.25).
EN 29.36 provides, in pertinent 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 adsorbing 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 particularly suitable for specific use rather than for general use.
. . .
(IJ) VITAMIN C AND DERIVATIVES THEREOF USED PRIMARILY AS VITAMINS
Vitamin C is the anti-scorbutic vitamin, and increases resistance to infections. It is soluble in water.
Vitamin C (L- or DL-ascorbic acid (INN))…is a white crystalline powder, fairly stable in dry air, and acts as a strong reducing agent.
. . .
Subheading Explanatory Note
Subheading 2936.90
This subheading includes, inter alia, intermixtures of two or more vitamin derivatives.
Heading 2936, HTSUS, provides for provitamins and vitamins, whether or not
treated with an added stabilizer (including an anticaking agent) necessary for their
preservation or transport. The EN to this heading further specifies that neither the
processing of the active ingredient nor the quantity of added agents may exceed that
necessary for the preservation or transport of the active substance so as to alter the
character of the basic product and render it particularly suitable for specific use rather
than for general use.
The primary ingredient of the Rovimix® mixture is produced from the reaction of ascorbic acid with sodium and calcium hydroxide, for stabilization and transport. The mixture is also spray-dried and mixed with silicone dioxide to ensure good mixability and flow. We find that these changes are within the scope permitted by the heading and accompanying ENs. The phosphorylated sodium-calcium ascorbic acid is a vitamin C derivative comprising the vast majority of the Rovimix Stay-C mixture. The inorganic compounds present are, according to the importer, byproducts of the reaction between ascorbic acid and calcium and sodium hydroxide. The added silicone dioxide comprises only 1% of the preparation, and appears to act as an anti-caking agent, a use permitted by Chapter 29 Note 1(e) and the language of the EN. The ENs also permit the stabilization of vitamins of heading 2936, HTSUS, by the addition of antioxidants. The esterification process prevents oxidation of ascorbic acid upon contact with moisture or high temperatures. This processing does not suggest that the product has been engineered so as to be particularly suitable for specific rather than general use; rather, the modifications merely stabilize the substance for any number of applications.
Based on the foregoing, we find that the instant merchandise is classifiable as a vitamin derivative of heading 2936, HTSUS. Because the product is comprised of a mixture of mono-, di- and tri-phosphate esters of vitamin C, the product is a mixture of vitamin C derivatives and is classified as an “other” provitamin of subheading 2936.90.01, HTSUS. See Subheading Explanatory Note to subheading 2936.90, HTSUS.
HOLDING:
By application of GRI 1, Rovimix® Stay-C® 35 is classified in heading 2936, HTSUS, specifically subheading 2936.90.01, which provides for “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; Other, including provitamins and natural concentrates.” The 2008 column one, general rate of duty is Free.
Since reclassification will result in a lower duty rate, you are instructed to allow the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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, Regulations and Rulings of the Office of International Trade 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.
Sincerely,
Myles B. Harmon, Director,
Commercial and Trade Facilitation Division