CLA-2 R:C:F 957505 EAB
U.S. Customs Service
2nd & Chestnut Streets
Philadelphia, Pennsylvania 19106-2999
Re: Application for Further Review of Protest No. 1101-4-100670 dated November 22, 1994 and liquidated September 23, 1994; menadione sodium bisulfite; HRL 950338
This is a decision on a protest filed November 22, 1994, against your decision in the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of merchandise entered April 16, 1992 and liquidated September 23, 1994.
The protestant entered all goods in subheading 2936.29.5000, HTSUSA, a provision for "other vitamins and their derivatives" not mixed and not previously provided for, dutiable at the column 1 general rate of 3.1 percent ad valorem.
Customs reclassified the merchandise under subheading 2914.70.2000, HTSUSA, a provision in part describing ketones and quinones, whether or not with other oxygen function, and certain of their derivatives, dutiable at the column 1 general rate of 11 percent ad valorem.
Protestant seeks reclassification, preferably to subheading 2936.29.5000, HTSUSA, alleging that the merchandise, menadione sodium bisulfite ("MSB") and commonly known as "Vitamin K3," is a derivative of naturally occurring Vitamin K1; alternatively, to subheading 2936.10.1000, HTSUSA, as a provitamin, dutiable at the column 1 general rate of 3.3 percent ad valorem.
Whether menadione sodium bisulfite is classified under the HTSUSA as a derivative of a naturally occurring vitamin, as a provitamin, or according to its chemical structure.
LAW AND ANALYSIS:
In HRL 950338 (February 15, 1993), Customs held that MSB was classifiable under subheading 2914.70.2000, HTSUSA. Protestant, through counsel, argues that the decision "misinterprets the term 'derivative' . . . [which] could also lead to absurd results" since "Vitamin A is specifically listed . . . in subheading 2936.21, . . . [but] does not exist in nature." Whereas Congress saw it particularly appropriate to include under heading 2936 the family of chemical compounds commonly known as "Vitamins A" and not the so-called "Vitamins K" as either a class or kind or individually, we find no path to absurdity in the clearly presented classification scheme. Furthermore, and here we will paraphrase, while counsel for protestant urges us to otherwise "interpret" the US statute in a manner that would be "consistent" with the Canadian exemplar offered up, as if comity were even relevant, much less material, to the question, we note that there is no six-digit, or international provision for the "Vitamins K", wherefore, the Canadian provision describing "Vitamin K and its derivatives" under heading 2936 at the domestic level is legislating so fully within that government's sovereign authority, that we would not address it but for the "argument" made by counsel for protestant. Cursory reading of the Canadian provisions at 2936.29.00xx reveal marked differences from the US provisions at 2936.29.xxxx. Our obligation, of course, is to enforce the laws passed by Congress.
The alternative position to our choice of heading 2914 is stated as follows:
After MSB is ingested, it is unquestionably used as a vitamin. Thus, even if MSB is not in itself a vitamin, it is certainly a provitamin.
We find unquestionable the enzymatic catalysis of starches to sugars does not "make" starches sugars, and we are not persuaded by the arguments in this protest, that MSB is classifiable as a "provitamin."
We remain of the opinion that menadione sodium bisulfite is classifiable under the HTSUSA in accordance with its chemical structure.
The protest should be denied.
Menadione sodium bisulfite was properly classified in 1992 under subheading 2914.70.2000, HTSUSA, a provision which then described "Ketones and quinones, whether or not with other oxygen function , and their halogenated, sulfonated, nitrated, or nitrosated derivatives: Halogenated, sulfonated, nitrated or nitrosated derivatives: Aromatic: Other."
Merchandise entered in 1992 under the foregoing subheading was dutiable at the column 1 general rate of 11 percent ad valorem.
A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as a part of the notice of action on the protest.
In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1992, Subject: Revised Protest Directive, this decision should be mailed by your office 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 this decision by your office. 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 the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.
John Durant, Director
Commercial Rulings Division