CLA-2 RR:CR:GC 965447 HEF
U.S. Customs Service
200 East Bay Street
Charleston, South Carolina 29401
RE: Protest 1601-01-100512; Lutavit® D3 500 S; animal feed preparations
Dear Port Director:
This is our decision on Protest 1601-01-100512 filed by BASF Corporation (BASF) against your classification under the Harmonized Tariff Schedule of the United States (HTSUS), of merchandise, commercially known as Lutavit® D3 500 S. The entries were liquidated on September 21, 2001, and the protest timely filed on November 26, 2001.
The sample submitted is a spray-dried, water dispersible powder used as a vitamin additive for animal feed preparations. According to the Customs lab report (SV20000603, dated December 28, 2000), the merchandise is composed of 76 percent lactose, 10 percent sodium caseinate, 6 percent peanut oil, 2 percent ethoxyquin, 1.5 percent amorphous silica, and 1.3 percent vitamin D3 . According to the importer, the product is “specifically designed to provide required Vitamin D3 levels in manufactured feeds and multivitamin water dispersible mixes.” BASF Technical Specification leaflet TS 9508, 2nd Revised Edition, 1998.
According to the protestant, BASF, the merchandise is classifiable under subheading 2936.29.5020, HTSUS, as Vitamins D and their derivatives. You classified the merchandise in subheading 2309.90.2490, HTSUS, as preparations of a kind used in animal feeding…other, if entered while the tariff rate quota (TRQ) is open; and under subheading
9904.23.08/2309.90.2890, HTSUS, if entered after the TRQ has been filled.
Whether the subject merchandise is classifiable as a vitamin additive under subheading 2936.29.5020, HTSUS or whether it constitutes a preparation of a kind used in animal feeding, classifiable in subheading 2309.90.2490, HTSUS, if entered while the TRQ is open; and in subheading 9904.23.08/2309.90.2890, HTSUS, if entered after the TRQ has been filled.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that articles are to be classified by the terms of the headings and relative Section and Chapter Notes. For an article to be classified in a particular heading, the heading must describe the article, and not be excluded therefrom by any legal note. In the event that 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 understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
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:
2936.29 Other vitamins and their derivatives:
* * *
2309 Preparations of a kind used in animal feeding:
Described in additional U.S. note 2 to this chapter and
entered pursuant to its provisions
The language of Chapter 23, Note 1, HTSUS, states: “Heading 23.09 includes products of a kind used in animal feeding, not elsewhere specified or included, obtained by processing vegetable or animal materials to such an extent that they have lost the essential characteristics of the original material, other than vegetable waste, vegetable residues and by-products of such processing.” Therefore, before classifying the product in Chapter 23, we must first determine whether it can be classified in any other heading.
The EN to subheading 2936, HTSUS, page 462, provides 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.”
Protestant argues that heading 2936, HTSUS, is the correct classification for this product. At first reading, the heading appears to cover the subject mixtures as goods enumerated in Note 1(f) to Chapter 29, HTSUS, which provides, “The products mentioned in (a), (b), (c), (d) or (e) above with an added stabiliser (including an anti-caking agent) necessary for their preservation or transport.” However, the subject products cannot be classified in heading 2936, HTSUS, because they have been processed far beyond that which is necessary for preservation or transportation. Additionally, the precise formulae in which the vitamin has been mixed has rendered the product suitable for specific use as a dietary supplement additive for animal feed preparations rather than for general use.
Customs has classified some products containing vitamins under heading 2936, HTSUS. In HQ 953829, dated July 26, 1993, Customs classified Microvit AD3 Supra 650/325 and Microvit AD3 Supra 500/100 in Chapter 29. In addition to the vitamin content these products contain as a “coating” gelatin and lactose to provide stability and protection from air, light, humidity and temperature; with BHT as an anti-oxidizer, and water. These added ingredients are not nutrients but act as anticaking and stabilizing agents.” The subject merchandise however contains lactose as a carrier. Protestant’s own submission on page 4 states that “[t]he potency of Vitamin D3 oil requires increased levels of lactose, so that the resulting product, a formulated powder can be evenly distributed into water based feed products which fulfill the nutrient levels required in the production of animal feeds.” Thus, the increased levels of lactose are not used solely for the preservation or transport of the item as classification under heading 2936, HTSUS, would require, but the increased levels of lactose serve as a means for dispersing Vitamin D3 evenly throughout all types of animal feed.
The product appears to be food supplements that are added to animal feed preparations, not for therapeutic purposes (for treatment of any specific condition or ailment), but for the purpose of maintaining general health and well-being. Accordingly, these preparations are not medicaments of Chapter 30, HTSUS. Further, the instant premixes are not vitamins, per se, but rather animal feed preparations containing vitamins.
The ENs to heading 23.09, HTSUS, state, in pertinent part, as follows:
This heading covers sweetened forage and prepared animal feeding stuffs consisting of a mixture of several nutrients designed :
to provide the animal with a rational and balanced daily diet (complete feed);
(2) to achieve a suitable daily diet by supplementing the basic farm-produced feed with organic or inorganic substances (supplementary feed); or
(3) for use in making complete or supplementary feeds.
* * * * * *
(C) PREPARATIONS FOR USE IN MAKING THE COMPLETE FEEDS OR SUPPLEMENTARY FEEDS DESCRIBED IN (A) AND (B) ABOVE
These preparations, known in trade as “ premixes”, are, generally speaking, compound compositions consisting of a number of substances (sometimes called additives) the nature and proportions of which vary according to the animal production required. These substances are of three types:
(1) Those which improve digestion and, more generally, ensure that the animal makes good use of the feeds and safeguard its health: vitamins or provitamins, amino-acids, antibiotics, coccidiostats, trace elements, emulsifiers, flavourings and appetisers, etc.
(2) Those designed to preserve the feeding stuffs (particularly the fatty components) until consumption by the animal : stabilisers, anti-oxidants, etc.
(3) Those which serve as carriers and which may consist either of one or more organic nutritive substances (manioc or soya flour or meal, middlings, yeast, various residues of the food industries, etc.) or of inorganic substances (e.g., magnesite, chalk, kaolin, salt, phosphates).
The concentration of the substances described in (1) above and the nature of the carrier are determined so as to ensure, in particular, homogeneous dispersion and mixing of these substances in the compound feeds to which the preparations are added.
See also H. Reisman Corp. v. United States, 17 CIT 1260 (1993), which classified the product that provided vitamin B-12 in animal feed in heading 2309, HTSUS. The nature of the lactose carrier in the subject merchandise ensures homogeneous dispersion in the feeds. BASF Technical Information, Edition 2001, page 15, defines the composition of the subject product: “vitamin D3 is incorporated in finely dispersed form in a matrix of milk constituents and gelatin and stabilized with antioxidants.” Under the “Areas of Use” heading on the same page, the brochure states, “Lutavit D3 500 S is very easily dispersible in cold water. …The mixing behavior of the powder is excellent. Because of its high particle number and good dispersibility in water, the product is especially highly suitable for: 1. Milk replacers for piglets, calves, and other animals. 2. Water-dispersible multivitamin mixtures which are administered directly via the drinking water.” The lactose and sodium caseinate carriers in the subject product go far beyond stabilizing vitamin D3 for preservation and transport. The lactose, in particular, is utilized to make the product more easily dispersible when used. Furthermore, Lutavit® D3 500 S is marketed specifically for animal feed and is not used for human consumption. Thus, the product has been rendered for specific and not general use. See also Vitek Supply Co., v. United States, 17 CIT 111 (1993), which classified a veal premix containing 6 percent by weight grain products and 94 percent vitamins and minerals in heading 2309, HTSUS, as an animal feed.
Because both lactose and sodium caseinate, which constitute 85% by weight of the product, fall within the term “milk or milk derivatives,” Lutavit® D3
500 S is classifiable under the tariff rate quota provision for Animal feeds containing milk or milk derivatives…Containing over 10% by weight of milk solids…Described in additional U.S. note 2 to this chapter and entered pursuant to its provisions, in subheading 2309.90.2490, HTSUS.
Based on the above, the subject product is classifiable in the final residual subheading of 2309.90.2490, HTSUS, if entered while the TRQ is open. If entered after the TRQ is filled, the subject product is classifiable in subheading 2309.90.2890, HTSUS. Goods entered in subheading 2309.90.2890, HTSUS, may be subject to additional safeguard duties, as provided in subheadings 9904.2301 – 9904.23.09, HTSUS.
Under GRI 1, the subject product is classified in subheading 2309.90.2490, HTSUS, as preparations of a kind used in animal feeding: other: animal feeds containing milk or milk derivatives: containing over 10 percent by weight of milk solids: described in general note 15 of the tariff schedule and entered pursuant to its provisions… other, if entered while the TRQ is open. If entered after the TRQ is filled, the subject product is classifiable in subheading 2309.90.2890, HTSUS. Goods entered in subheading 2309.90.2890, HTSUS, may be subject to additional safeguard duties, as provided in subheadings 9904.2301 – 9904.23.09, HTSUS.
The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, 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 or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Myles B. Harmon, Acting Director
Commercial Rulings Division