CLA-2 RR:CR:GC 966566AM
Port Director
U.S. Customs and Border Protection
Building # 77
Jamaica, N.Y. 11430
Re: Internal Advice 03/009; Pineol®, Vitisol® and Berkemyol®
Dear Port Director:
This is in response to your request for Internal Advice, 03/009, dated May 16, 2003, regarding the classification, under the Harmonized Tariff Schedule of the United States (HTSUS) of certain vegetable extracts imported in bulk powder form by PhytoMedica, LLC. The three products for consideration are Pineol®, a pine bark extract, Vitisol®, a grape seed extract and Berkemyol®, a grape seed extract esterified with palmitic acid.
FACTS:
Vitisol® and Pineol® are fine beige powders imported in bulk in one or ten kilogram bags for wholesale and are used in the further manufacture of skin care products. Berkemyol® is a preparation of pine bark extract with palmitic acid added for esterification. According to the importer’s Certificate of Analysis, Pineol® contains over 90% oligomeric proanthocyanidin (OPC) content and Vitisol® contains over 95% OPC content. OPCs are a mixture of proanthocyanidin compounds in different degrees of polymerization. Some of the OPCs are catechins with a chemical formula of C15H14O6 (The Merck Index, 11th ed.), dimers (two degrees), trimers (three degrees), etc. Due to these varying states of polymerization, the OPCs are not comprised of a single chemical compound, although the main chemical structures are identical.
Pine bark and grape seeds are two plants high in OPC content used for this purpose within the dietary supplement and cosmetics industries. The patent for extracting the OPC content from any plant containing OPCs described as follows:
A 100 kg of maritime pine bark reduced to a coarse powder are extracted with boiling water so as to collect 250 liters of liquid after having squeezed out the marc. The liquid cooled to 20 degree C. is filtered. To the filtrate sodium chloride is added up to saturation. . . . The precipitate formed is eliminated by filtration. The filtrate is extracted thrice with ethyl acetate which is used each time at the rate of 1/10 of the volume of the aqueous phase. The ethyl acetate collected is dried on anhydrous Na2SO4 and brought back to 1/5 of its volume by distillation under reduced pressure. It is then poured into three volumes of chloroform, while stirring mechanically. The proanthocyadins are precipitated. They are collected by filtration. They may be purified by redissolution in ethyl acetate and a new precipitation in chloroform. They are finally washed with chloroform and dried at reduced pressure in a heating chamber not exceeding 50 degrees.
ISSUE:
Are Pineol®, Vitisol®, and Berkemyol® classified as vegetable extracts of heading 1302, HTSUS?
LAW AND ANALYSIS:
Merchandise imported into the United States 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, which 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 for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate 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 understanding the language of 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 the following:
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
1302.19.90 Other
* * * * * * * * * * * *
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:
Other:
Mixtures containing 5 percent or more by weight of one or more aromatic or modified aromatic substances:
3824.90.28 Other
* * * * * * * * * * * *
Other
3824.90.91 Other
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).
The relevant portion of heading 3824, HTSUS, referring to chemical products and preparations, can only be used to classify a mixture of natural products as such if the product is not provided for in another heading of the HTSUS. Therefore, if we find that the merchandise is described by the terms of heading 1302, HTSUS, then heading 3824, HTSUS, can not be considered.
Heading 1302, HTSUS, describes vegetable extracts. The EN’s provide that vegetable products are usually obtained by natural exudation or by incision, or extracted by solvents. Our research provides that traditional extracts are obtained by decoction, percolation, maceration, digestion, or infusion. See United States Pharmacopeia (USP), (21st rev., p.1334), and Remington's Pharmaceutical Sciences, (18th ed., p. 1543). However processed, the extracts described by the ENs and the USP appear to be complex substances containing a large portion of the plant profile such that they are identifiable as an extract of a particular vegetable. This is further emphasized by the EN distinguishing products of heading 1302 from products of 3301 by the amount of plant material they contain. Hence, substances obtained from a plant are not considered “vegetable extracts” if they only contain one ingredient divorced from the composition of the vegetable source.
"It is a well-established principle that classification of an imported article must rest upon its condition as imported." E. T. Horn Company v. United States, Slip Op. 2003-20, (CIT, 2003), (citing Carrington Co. v. United States, 61 CCPA 77, 497 F.2d 902, 905 (CCPA 1974), United States v. Baker Perkins, Inc., 46 CCPA 128, (1959)). The instant merchandise consists of over 90% mixtures of oligomeric proanthocyanidins (OPCs). For their purposes as cosmetic ingredients, OPCs from pine bark or from grape seeds are interchangeable. They are relatively pure chemical products. If OPCs, as obtained from grape seeds or from pine bark, existed in a single polymerized state, they would be products of Chapter 29, HTSUS. Hence, the instant merchandise can not be described as extracts when their content is essentially a single ingredient, OPCs.
While the process of extraction aids us in determining the content of the instant product, it is not determinative in finding that the instant merchandise is not vegetable extracts of heading 1302. However, here the process is very illuminating. After having been boiled, cooled, filtered, precipitated with salt, filtered and extracted with ethyl acetate, a solvent, the pine bark no longer appears in the description of extraction. Rather, the patent states, "the ethyl acetate collected is dried . . . . The proanthocyadins are precipitated. They are collected by filtration. They may be purified by redissolution in ethyl acetate and a new precipitation in chloroform. They are finally washed with chloroform and dried." Thus, the ethyl acetate has removed the OPCs from the vegetable matter. The further processing is no longer the extraction from a vegetable, but rather the processing of a solvent mixed with OPCs. This is purely chemical processing ending in the creation of a chemical mixture. See HQ 964338, dated March 28, 2001, where Customs classified an 80% silymarin product in heading 3824, HTSUS, and HQ 965030, dated May 20, 2002, where Customs classified Quercitin, a single chemical compound extracted from legumes, in Chapter 29, HTSUS.
Berkemyol® has not only been processed as described above, but has been further prepared by the addition of palmitic acid. Due to this additional preparation, the product can not be described as an extract, but is rather a chemical mixture.
Therefore, we find that the classification of Vitisol®, Pineol® and Berkemyol® is under subheading 3824.90.28, the provision for "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: Other: Mixtures containing 5 percent or more by weight of one or more aromatic or modified aromatic substances: Other."
We are aware that Protest 1001-00-102326, dated March 21, 2000, regarding the classification of grape seed extracts, was approved at the port of New York for classification in subheading 1302.19.40, HTSUS. While we find this to be noteworthy, it is not of precedential value and does not establish a treatment within the meaning of 19 C.F.R. §177.12(c).
HOLDING:
The classification of Vitisol®, Pineol® and Berkemyol® is subheading 3824.90.28, the provision for "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: other: mixtures containing 5 percent or more by weight of one or more aromatic or modified aromatic substances: other."
You are directed to mail this decision to the internal advice applicant, no later than 60 days from the date of this letter. On that date 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.cbp.gov, by means of the Freedom of Information Act, and other public methods of distribution.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division