CLA-2 RR:CTF:TCM 967971 BtB
Mr. Michael R. Tartaro
Byron Chemical Company, Inc.
40-11 23rd Street
Long Island City, NY 11101
Re: Revocation of HQ 964338: Silymarin 80% (Milk Thistle Standarized Extract)
Dear Mr. Tartaro:
This is in regard to Headquarters Ruling Letter (HQ) 964338, dated March 28, 2001, concerning the classification of silymarin under the Harmonized Tariff Schedule of the United States (HTSUS). In that ruling, we issued a decision on Protest 1001-99-103909, in which the silymarin was classified in subheading 3824.90.28, HTSUS, as a preparation of the chemical or allied industries, not elsewhere specified or included. We have reviewed HQ 964338 and have found it to be in error. Therefore, this ruling revokes HQ 964338.
Under San Francisco Newspaper Printing Co. v. United States, 9 CIT 517, 620 F. Supp. 738 (1985), the liquidation of the entries covering the merchandise which was the subject of Protest 1001-99-103909 was final on both the protestant and CBP. Therefore, this ruling has no effect on those entries.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by Title VI, a notice was published in the June 22, 2005, CUSTOMS BULLETIN, Volume 39, Number 26, proposing to revoke HQ 964338, and to revoke any treatment accorded to substantially identical transactions. While we did receive a comment in response to this notice, the comment opposed the modification of a different ruling and was not directed at the revocation of HQ 964338.
FACTS:
According to Customs Lab Report #2-1999-20518, dated January 25, 1999, Silymarin 80% is a yellow powder that contains 80% mixture of isomers of silymarin (silybin, silicristin and silidianin). It is imported in bulk.
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 of Silymarin 80% under the HTSUS?
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:
Heterocyclic compounds with oxygen hetero-atom(s) only:
Other:
2932.99 Other:
Aromatic:
Other:
2932.99.61 Products described in additional U.S. note 3 to section VI.
* * * * *
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:
Other:
3824.90 Other:
Mixtures containing 5 percent or more by weight of one or more aromatic or modified aromatic substances:
3824.90.28 Other
Additional U.S. Note 3 to Section VI, HTSUS, provides:
The term "products described in additional U.S. note 3 to section VI" refers to any product not listed in the Chemical Appendix to the Tariff Schedule and--
(a) For which the importer furnishes the Chemical Abstracts Service (C.A.S.) registry number and certifies that such registry number is not listed in the Chemical Appendix to the Tariff Schedule; or
Which the importer certifies not to have a C.A.S. registry number and not to be listed in the Chemical Appendix to the Tariff Schedule, either under the name used to make Customs entry or under any other name by which it may be known.
Chapter Note 1 to Chapter 29 states, in pertinent part, the following:
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;
(b) Mixtures of two or more isomers of the same organic compound (whether or not containing impurities), except mixtures of acyclic hydrocarbon isomers (other than stereoisomers), whether or not saturated (chapter 27);
In HQ 964338, we stated the following: “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.” We now consider this statement to be incorrect.
Chapter 29, note 1(b) allows for mixtures of isomers containing impurities. Here, the mixture of isomers makes up 80% of the product. The other 20% is remainder from the starting material and a small amount of solvent. We consider this remainder to constitute “impurities” within the terms of the chapter note.
Within Chapter 29, silymarin is undisputedly a heterocyclic compound of heading 2932, HTSUS, as it includes six-membered rings containing oxygen atoms in the ring. Hence, heading 3824, a basket provision, can no longer describe this merchandise, which is more specifically provided for elsewhere. Using GRI 6, subheading 2932.99.61, HTSUS, describes this product as an other aromatic heterocyclic compound for which the CAS registry number is not listed in the Chemical Appendix under the terms of U.S. note 3 to section VI.
We note that silymarin is not a “medicament” of heading 3003, HTSUS, because it is neither intended nor sold for the treatment or prevention of any medical condition. As stated in the Explanatory Notes to Heading 3003, the heading covers “… medicinal preparations for use in the internal or external treatment or prevention of human or animal ailments.” Silymarin, however, is marketed and sold as a dietary supplement, not a medicament. For a more complete discussion on medicaments and dietary supplements, see HQ 964673, dated February 4, 2002 (on the classification of Joint Advantage® tablets) and/or HQ 966771, dated September 15, 2004 (on the classification of “Promensil,” Red Clover).
HOLDING:
Silymarin is classified in subheading 2932.99.6100, HTSUSA (annotated), the provision for “Heterocyclic compounds with oxygen hetero-atom(s) only: Other: Other: Aromatic: Other: Products described in additional U.S. note 3 to section VI.” The general, column 1 rate of duty under the 2006 HTSUS is 6.5% ad valorem, with reference to headings in Chapter 99, HTSUS.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov.
EFFECT ON OTHER RULINGS:
HQ 964338, dated March 28, 2001, is hereby revoked.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the CUSTOMS BULLETIN.
Sincerely,
Myles B. Harmon, Director
Commercial Trade and Facilitation Division