CLA-2 RR:CR:GC 963167ptl
Ms. Linda M. Christy-Mohabeer
Circle International, Inc.
1245 Royal Lane North
DFW Airport, TX 75261
RE: Herbal Microspheres; NY 815561 modified; HQ 953679, 960607.
Dear Ms. Christy-Mohabeer:
In New York Ruling Letter (NY) 815561, issued to you on November 21, 1995, by the Customs National Commodity Specialist Division in New York, on behalf of Naturade® Products, Paramount, CA, several varieties of herbal microspheres were classified under the Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed that ruling and determined that the classification provided for some of the products was incorrect. This letter modifies NY 815561 by providing the correct classification for the herbal microspheres identified below.
FACTS:
In NY 815561, 13 different products, all described as “herbal microspheres” were classified in two different HTSUS headings. All the microspheres are said to be produced from extracts which have been obtained through the following multi-step process: (1) the source material (herb) is dried and then the desired component is obtained through standard extraction by heat-free “percolation” of the herb (i.e., the herb is passed through a solvent selected for that particular herb), (2) “sterilization” by passing through a 0.2 micron micro-porous column (since the process does not involve the application of intense heat, we assume “sterilization” means removal of solid plant matter),
(3) concentration by reverse osmosis (which removes still more of the plant material), and (4) admixture with a cellulose “carrier”. This mixture is put into a rotary dryer called an “extruder” which removes the remaining alcohol, leaving the product in spaghetti-like strands. The strands are put into a “spheronisator”, a machine that transforms the product into microspheres, which are then dried. The microspheres are imported in bulk for subsequent encapsulation. The capsules are individually sealed in blister packs and packaged for retail sale as dietary supplements.
In NY 815561 the microspheres were classified in different subheadings depending on whether the microsphere was single species or multiple species. Five single species products identified as: saw palmetto (lot # SP/950649), feverfew (lot # FF/950672), green tea (lot # GT/950671) [GT/9506710 in the original], echinacea purpurea (lot # EP/950652), and golden seal (lot
# GS/950665) were classified in subheading 1302.19.4040, HTSUS; and the eight multiple species products identified as: natural G3 (lot # G3/0695), natural A1 (lot # A1/0695), natural P (lot # P/0695), natural E (lot # E/0695), natural M (lot # M/0695), natural I (lot # I/0695), natural N (lot # N/0695), and natural S (lot # S/0695) were classified in subheading 2106.90.9999, HTSUS. NY 815561 does not state the rationale for the differing classifications. We have reviewed the ruling and determined that the five single species products were not properly classified.
Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed modification of NY 815561 was published on April 5, 2000, in the Customs Bulletin, Volume 34, Number 14. No comments were received in response to the notice.
ISSUE:
What is the classification of saw palmetto, feverfew, green tea, echinacea purpurea, and golden seal herbal microspheres?
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the 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 order.
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:
Vegetable saps and extracts:
Other:
1302.19.40 Other
* * *
Other.
* * * * *
2101 Extracts, essences and concentrates, of coffee,
tea or maté and preparations with a basis of
these products or with a basis of coffee, tea or
maté; roasted chicory and other roasted coffee
substitutes, and extracts, essences and concen-
trates thereof:
2101.20 Extracts, essences and concentrates, of tea
or maté, and preparations with a basis of
these extracts, essences or concentrates or
with a basis of tea or maté:
2101.20.2000 Extracts, essences and concentrates.
2106 Food preparations not elsewhere specified or
included:
* * *
2106.90 Other:
Other:
Other:
Other:
Other:
Other:
Other.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
As noted above, heading 1302 covers vegetable saps and extracts.
EN 13.02 states:
Extracts may be simple or compound. Simple extracts are obtained by the treatment of only one variety of plant. Compound extracts are obtained either by mixing simple extracts or by treating mixtures of different varieties of plants. Compound extracts (whether in the form of alcoholic tinctures or in any other forms) therefore contain the constituents of several kinds of plant; they include compound jalap extract, compound extract of aloes, compound extract of cinchona, etc.
We must determine whether classification of the microspheres in heading 1302, HTSUS, is correct. If the microspheres satisfy the criteria for classification in heading 1302, this EN means that the classification of the simple and mixed ingredient microspheres in NY 815561 in different headings was not in accordance with the EN and thus was incorrect.
When describing the type of extract covered by the heading, EN 13.02 states:
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.
The microspheres being classified cannot be considered to be raw materials for various other manufactured substances. Rather, the extracts have been turned into finished products intended to be put up for retail sale – after encapsulation – for use as dietary supplements. Literature provided by the importer states that the extract has been adsorbed by the cellulose carrier and that the final product is “stable, clean, [and] non contaminated”. And that “[I]t can stay that way for years without any particular care.” Customs has consistently held that extensive processing of an extract based article which transforms it from a raw material into an article ready for use as or in some more specialized
product will render it ineligible for classification in heading 1302. (See HQ 960607, dated July 31, 1998, citing HQ 953679, dated February 3, 1994)
One of the articles being classified is identified as “green tea” microspheres made from Camilia sinesis (lot no. GT/9506710). The Dictionary of Economic Plants, Second Edition, identifies Camilia sinesis as being a synonym for Camilia thea, or common tea. The ENs to heading 13.02 state that “The heading further excludes the following vegetable products, classified under more specific headings of the Nomenclature : (c) Extracts of coffee, tea or maté (heading 21.01).” However, based upon the description of the process which is used to produce the microspheres, we do not believe the “green tea” microspheres are properly classified in heading 2101, HTSUS. The ENs for heading 21.01 describe tea or maté extracts, essences and concentrates as being “… products [which] correspond, mutatis mutandis, to those referred to in paragraph (1).” Paragraph (1) states: “Coffee extracts, essences and concentrates. These may be made from real coffee (whether or not caffeine has been removed) or from a mixture of real coffee and coffee substitutes in any proportion. They may be in liquid or powder form, usually highly concentrated. This group includes products known as instant coffee. This is coffee which has been brewed and dehydrated or brewed and then frozen and dried by vacuum.” The description of coffee extracts and like products would apply, mutatis mutandis, to products such as instant tea and liquid tea extracts, used for flavor and aroma. The “green tea” microspheres are articles which at one time may have been partly tea leaves, but they have not “been made from” real tea. The tea leaves have been highly processed into an article which is not similar to an instant tea or liquid tea extract, but is an end product in itself.
The ENs to heading 21.01 state that the heading also covers preparations of tea and coffee extracts which are described as “preparations based on extracts, essences or concentrates of coffee, tea or maté (and not on coffee, tea or maté themselves), and include extracts, etc., with added starches or other carbohydrates.” However, since the “green tea” microspheres are not a tea or an essence, extract or concentrate of a tea, it cannot be a preparation based on the extract of tea. Accordingly, the “green tea” microspheres are not classified in heading 2101, HTSUS.
For the above reasons, the herbal microspheres are not classified in either headings 1302 and 2101, HTSUS. Literature provided by the importer indicates that the microspheres are intended to be encapsulated and offered for retail sale by Naturade® as a natural herb health supplement. Customs has consistently classified encapsulated herbal health supplements in subheading 2106.90.9998, HTSUS, as food preparations, not elsewhere specified or included, other. See HQ 963679 and 960607, cited above.
HOLDING:
Herbal microspheres saw palmetto (lot # SP/950649), feverfew (lot
# FF/950672), green tea (lot # GT/950671) [GT/9506710 in the original], echinacea purpurea (lot # EP/950652), and golden seal (lot # GS/950665) are classified in subheading 2106.90.9998, HTSUS, as food preparations not elsewhere specified or included, other, other, other, other, other, other, other.
NY 815561, dated November 21, 1995 is modified in accordance with this ruling. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
John Durant, Director
Commercial Rulings Division