CLA-2 RR:CR:GC 963848 AM
Port Director of Customs
330 Second Avenue South
Minneapolis, MN 55401
Re: Protest 3501-99-100075; pale refined pyrethrum extract 50%
Dear Port Director:
This is in regard to protest 3501-99-100075, concerning your classification of pale refined pyrethrum extract 50% under the Harmonized Tariff Schedule of the United States (HTSUS). The merchandise was entered between July of 1998 and August of 1999, in 21 separate entries, and classified in subheading 1302.14.00, HTSUS, as a "vegetable extract." The entries were reliquidated on September 8, 1999, under subheading 3808.10.50, HTSUS, as an "other insecticide preparation." A protest was timely filed on December 2, 1999. In preparing this ruling, we have considered arguments presented in a meeting at Customs Headquarters on November 9, 2001, as well as in supplemental submission dated July 11, September 4, and September 27, 2001, and February 8 and February 25, 2002.
FACTS:
Pale refined pyrethrum extract 50% is produced from pyrethrum flowers (of the species chrysanthemum cinerariaefolium) by the following process: dried pyrethrum flowers are coarsely ground and grist is extracted from the ground product by percolation with low boiling isoalkanes such as hexane. Pyrethrum Flowers-Production, Chemistry, Toxicology, and Uses, 109 (John E. Casida & Gary B. Quistad eds. 1995). The filtered solution of extractives is then evaporated to leave a viscous dark greenish-brown liquid called "brut" or "oleoresin." Id. Oleoresion contains approximately 30% pyrethrins and 67% other plant substances. This crude extract is partitioned into a solvent and then decolorized. The partitioning solvent is then distilled, the residue is dissolved in the final diluent or higher boiling isoalkanes. The concentration of pyrethrins is then adjusted to a standard level by adding an isoparafin diluent. The end result of this process is pale refined pyrethrum extract 50%, containing approximately 50% pyrethrins and about 37% other plant substances.
According to Customs laboratory report #SF20010234, dated May 21, 2001, twenty five (25) % pale refined pyrethrins is a clear yellow, slightly viscous liquid and semi-solid yellow material. Fifty (50) % pale refined pyrethrins is a darker yellow and more viscous liquid. Thirty (30) % pyrethrum crude extract is an opaque, greenish brown, very viscous liquid. Neither of the refined products contain a substantial amount of low volatility natural substances such as sterols and straight-chain waxy hydrocarbons found in the crude extract and the refined pyrethrins are considerably more volatile than the crude extract. Furthermore, the refined pyrethrin contains an aliphatic petroleum solvent absent from the crude extract.
ISSUE:
What is the classification under the HTSUS of pale refined pyrethrum extract?
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 that 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 related 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 HTSUS. See T.D. 89
80, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUS headings under consideration are as follows:
1302 Vegetable saps and extracts; pectic substances, pectinates and pectates; agar-agar and other mucilages and thickeners, whether or not modified, derived from vegetable products:
3808 Insecticides, rodenticides, fungicides, herbicides, antisprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packings for retail sale or as preparations or articles (for example, sulfur-treated bands, wicks and candles, and flypapers):
EN 13.02 states, in pertinent part, the following:
(A)Vegetable saps and extracts.
The heading covers saps and extracts (vegetable products usually obtained by natural exudation or by incision, or extracted by solvents), provided that they are not specified or included in more specific headings of the Nomenclature (see list of exclusions at the end of Part (A) of this Explanatory Note).
These saps and extracts differ from the essential oils, resinoids and extracted oleoresins of heading 33.01, in that, apart from volatile odoriferous constituents, they contain a far higher proportion of other plant substances (e.g., chlorophyll, tannins, bitter principles, carbohydrates and other extractive matter).
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The saps and extracts classified here include: . . . .
(4) Pyrethrum extract, obtained mainly from the flowers of various pyrethrum varieties (e.g., Chrysanthemum cinerariaefolium) by extraction with an organic solvent such as normal hexane or “ petroleum ether ”.
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Tinctures and fluid extracts are generally standardised (for instance, pyrethrum extract may be standardised by adding mineral oil to produce commercial grades with a standard pyrethrins content of, e.g., 2 %, 20 % or 25 %).
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The vegetable saps and extracts of this heading are generally raw materials for various manufactured products. They are excluded from the heading when, because of the addition of other substances, they have the character of food preparations, medicaments, etc. . . . .
Examples of excluded preparations are: . . .
(iv) Intermediate products for the manufacture of insecticides, consisting of pyrethrum extracts diluted by addition of mineral oil in such quantities that the pyrethrins content is less than 2 %, or with other substances such as synergists (e.g., piperonyl butoxide) added (heading 38.08).
EN 38.08 states, in pertinent part, the following:
These products are classified here in the following cases only: . . .
(2) When they have the character of preparations, whatever the presentation (e.g., as liquids, washes or powders). These preparations consist of suspensions or dispersions of the active product in water or in other liquids (e.g., a dispersion of DDT (1,1,1-trichloro-2,2-bis- (p-chlorophenyl)ethane) in water), or of other mixtures. Solutions of active products in solvents other than water are also included here (e.g., solutions of pyrethrum extract (other than standardised pyrethrum extract), or copper naphthenate in a mineral oil).
Intermediate preparations, requiring further compounding to produce the ready-for-use insecticides, fungicides, disinfectants, etc., are also classified here, provided they already possess insecticidal, fungicidal, etc., properties.
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This heading excludes :
(a) Products for disinfecting, insecticidal etc., uses, not answering to the description above. These products are classified according to their nature under the appropriate headings, for example :
(i) Ground pyrethrum flowers (heading 12.11).
(ii) Pyrethrum extract (whether or not standardised by the addition of mineral oil) (heading 13.02).
Protestant cites HQ 957796, dated November 20, 1995, for the proposition that 20 or 25 % pyrethrum extract is classified in heading 1302, HTSUS. The issue in that case was whether standardization with xylene, rather than mineral oil, effects classification in heading 1302, HTSUS. We found that it did not. After reviewing information submitted by the importer, it appears that the product in that case is also a refined and standardized extract. Hence, HQ 957796 is dispositive of this issue and refined standardized pyrethrum extract is classified in heading 1302, HTSUS.
Traditional extracts are obtained by decoction, percolation, maceration, and digestion, or infusion. See United States Pharmacopeia, Twenty First Revision, p.1334 and Remington's Pharmaceutical Sciences, Eighteenth Edition, p 1543. The ENs to chapter 13, HTSUS, elicit an intent that only extracts that contain a substantial amount of plant substances e.g., chlorophyll, tannins, bitter principles, carbohydrates and other extractive matter, remain classified in the chapter. Here, the oleoresin, containing approximately 30% pyrethrins and 67% other plant material, is further extracted to concentrate the pyrethrin content by discarding the other plant substances. The resulting product, after dilution, contains approximately 50% pyrethrins and only about 37% other plant material. Generally, the additional refining steps create a product outside the scope of heading 1302, HTSUS. However, the ENs are specific with regards to pyrethrum and we must consider them here.
The EN's exclude only pyrethrum extracts with less than 2% pyrethrin content from heading 1302, HTSUS, and classify them in heading 3808, HTSUS, as intermediate insecticides. In fact, importer in this case also deals with an intermediate product, that is known in the industry as such, and contains less than 2 % pyrethrin content. Pale refined pyrethrum extract 50% is not such a product.
Furthermore, there is no explicit exclusion for a product which undergoes additional extractions, effectively concentrating the pyrethrin content, before standardization occurs. Pyrethrum extract is described in EN 13.02, HTSUS, as a product extracted by a solvent such as hexane. This procedure creates oleoresin. The less than 2 per cent pyrethrum extract product specifically excluded as an example of an intermediate insecticide does exist in commerce. Given the attention paid to pyrethrum extract in the ENs, we refuse to read in an exclusion for pale refined pyrethrum extract at this time.
Lastly, we do not find that pale refined pyrethrum extract has the character of a preparation of heading 3808, HTSUS, even though it contains a stabilizer. According to the importer, oleoresin also contains a stabilizer. Therefore, the presence of a stabilizer in this case is not enough to find that the instant merchandise is an intermediate preparation of heading 3808, HTSUS.
HOLDING:
The protest is ALLOWED. Pale refined pyrethrum extract 50% is classified in subheading 1302.14.00, HTSUS, the provision for "[V]egetable saps and extracts; pectic substances, pectinates and pectates; agar-agar and other mucilages and thickeners, whether or not modified, derived from vegetable products: [V]egetable saps and extracts: [O]f pyrethrum or of the roots of plants containing rotenone."
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.
Sincerely,
John Durant, Director
Commercial Rulings Division