CLA-2 RR:CR:GC 964338 AM
Port Director of Customs
Chief, Residual Liquidation and Protest Branch
6 World Trade Center, Room 761
N.Y., New York 10048-0945
Re: Protest 1001-99-103909; Silymarin 80% (Milk Thistle Standarized Extract)
Dear Port Director:
This is in regard to protest 1001-99-103909, concerning your classification of Silymarin under the Harmonized Tariff Schedule of the United States (HTSUS). The merchandise was entered on May 30, 1998 classified in subheading 1302.19.4040, HTSUS, as a vegetable extract, and the entry was liquidated on April 9, 1999 and subsequently reliquidated on July 2, 1999, under subheading 3824.90.28, HTSUS, as a preparation of the chemical or allied industries, not elsewhere specified or included. A protest was timely filed on August 10, 1999.
FACTS:
According to Customs lab report #2 1999 20518, dated January 25, 1999, Silymarin 80% is a yellow powder which contains 80% mixture of isomers of silymarin (silybin, silicristin and silidianin). It is imported in bulk. Although requested, Protestant has not submitted any evidence to support a claim that the other 20% of the imported product consist only of isomers of silymarin and the exact composition of this portion of the merchandise remains unknown.
Silymarin 80% is produced from milk thistle seeds. The seeds are milled into a cake. The cake is then subjected to 3-4 percolations in acetone for about 24 hours at 45 degrees centigrade. The filtered percolate is then concentrated by distillation under vacuum at 50-60 degrees centigrade to remove as much acetone as possible. This concentrate is then washed two times with 50 kg of cyclohexane to defat the product. The remaining concentrate is then dried under vacuum at 65-70% centigrade.
ISSUE:
What is the proper classification, under the HTSUS, of Silymarin 80%.
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:
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; residual products of the chemical or allied industries, not elsewhere specified or included:
EN 13.02(A) states "The heading covers saps and extracts (vegetable products usually obtained by natural exudation or by incision, or extraction by solvents)...[t]hese saps and extracts differ from the essentail 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...)."
Although considered, classification of the product in Chapter 29, HTSUS, is excluded because there is no evidence that the merchandise, as imported, consists only of isomers of silymarin. Heading 1302, HTSUS, likewise does not describe this merchandise. The protestant argues that this product should be classified under subheading 1302.19.90, HTSUS, as milk thistle extract. 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. These processes produce an extract described in EN 1302. Here, the milk thistle seeds undergo a process of solvent extraction, yielding milk thistle extract. This extract is then further subjected to distillation and defatting steps which remove a large portion of plant substances from the product. These additional steps prevent classification in heading 1302, HTSUS. (See HQ 961715, dated August 20, 1998).
Furthermore, the protestant cites two cases to support his proferred classification which do not, in fact, support his argument. First, NY 859656, dated February 13, 1991, classifies "Silymarin a plant extract also known as silybin" in heading 1302, HTSUS. Silymarin is confusingly known as the single compound Silybin as well as products like the instant merchandise which consist of substances other then Silybin. It is therefore likely that the merchandise described in NY 859656 is different from the subject merchandise and, therefore, that ruling has no relevance to the classification of the product at issue. Second, HQ 953679, dated February 3, 1994, simply classifies encapsulated milk thistle extract in heading 2106, HTSUS, as a food preparation. There is no discussion of the extract question presented in the instant case.
Next, we consider heading 3824, HTSUS. A chemical mixture is "a heterogeneous association of substances which cannot be represented by a chemical formula. Its components may or may not be uniformly dispersed and can usually be separated by mechanical means." Hawley's Condensed Chemical Dictionary, 12th Ed., p. 788, (Van Nostrand Reinhold company, 1993). Silimaryin 80% is thus described as a "mixture of natural products" classifiable in heading 3824, HTSUS. At GRI 6, Silymarin 80% is classified under subheading 3824.90.28, the provision for "[P]repared 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; residual products of the chemical or allied industries, not elsewhere specified or included: [O]ther: [O]ther: [O]ther."
HOLDING:
The protest is DENIED. Silymarin 80% is classified in subheading 3824.90.28, HTSUS, the provision for "[P]repared 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; residual products of the chemical or allied industries, not elsewhere specified or included: [O]ther: [O]ther: [O]ther."
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