CLA-2 OT:RR:CTF:TCM HQ H238484 NCD
Port Director, Service Port-Los Angeles/Long Beach Seaport
U.S. Customs and Border Protection
301 E. Ocean Blvd.
Suite 1400
Long Beach, CA 90802
Attn: William Recker, Senior Import Specialist
Re: Protest and Application for Further Review No: 2704-12-102956; Citrus Extract Powders
Dear Port Director:
The following is our decision regarding Protest and Application for Further Review No. 2704-12-102956, timely filed on August 22, 2012, on behalf of Syntech (SSPF) International, Inc. (“Syntech” or “Protestant”) regarding the tariff classification of four types of citrus extracts in powder form – citrus bioflavonoid powder, citrus polymethoxy flavone (citrus PMF) powder, citrus eriocitrin powder, and hesperidin powder – under the Harmonized Tariff Schedule of the United States (HTSUS).
The instant protest pertains to three entries of the subject merchandise entered at the Port of Los Angeles on January 11, 2012, January 18, 2012, and March 8, 2012 in subheading 1302.19.40, HTSUS, as “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: Ginseng; substances having anesthetic, prophylactic or therapeutic properties: Other.” On August 12, 2012, CBP at the Port of Los Angeles (‘the Port”) liquidated the citrus bioflavonoid powder, citrus eriocitrin powder, and hesperidin powder in subheading 2938.90.00, HTSUS, which provides for “Glycosides, natural or reproduced by synthesis, and their salts, ethers, esters and other derivatives: Other.” The Port liquidated the subject citrus PMF powders in subheading 2932.99.61, HTSUS, as “Heterocyclic compounds with oxygen hetero-atom(s) only: Other: Other: Aromatic: Other: Products described in additional U.S. note 3 to section VI.” Protestant now claims classification as entered.
FACTS:
Each of the subject products is created through initial extraction of the juices of various citrus fruits followed by further processing and eventual drying and milling. Prior to filing the instant protest, Protestant provided the Port with flowcharts detailing the production processes of the citrus eriocitrin, citrus PMF, and hesperidin powders. After a subsequent meeting between Protestant and the Port at which the Port attributed the products’ classification changes from heading 1302, HTSUS, to heading 2938, HTSUS, to the products’ elaborate manufacturing processes and resulting purified product, Protestant submitted a new set of flowcharts depicting the production processes for the citrus eriocitrin, citrus bioflavonoid, and hesperidin powders. Notably, the processes for production of the citrus eriocitrin and hesperidin powders depicted on the later flowcharts differ from those displayed on the original flowcharts. In addition, samples of the subject products were submitted for analysis to a CBP laboratory (the “laboratory”), which issued an initial report analyzing the chemical compositions of the citrus eriocitrin, citrus bioflavonoid, and hesperidin powders and a subsequent report analyzing the composition of the citrus PMF powder.
The hesperidin powder, according to both flowcharts detailing the product’s manufacture, is derived from the immature fruit of the variety Citrus sinensis, i.e., the sweet orange. Initially the fruit is smashed to a particle size of about one millimeter. The earlier flowchart indicates that the residual material subsequently undergoes diacolation, filtration, spray drying, pulverization, and, finally, packaging for shipment. The later flowchart indicates that, after the initial smashing, the material is washed, heated to 78 degrees Celsius along with the solvent, supplemented with sodium hydroxide and periodically stirred, filtered with paper, condensed to 2/3 volume, cooled to room temperature, deposited, flushed, spray dried at 55 degrees Celsius, and finally milled. According to the initial laboratory report, the hesperidin powder contains, on a dry basis, 48.91 percent hesperidin, 13.93 percent polyphenols, 6.74 percent protein, 1.17 percent citric acid, and 4.62 percent ash in the form of potassium and calcium, the high content of which is indicative of a natural composition. The laboratory also observed numerous natural compounds in the sample, including fatty acids, quinic acid, oleamide, beta sitosterol, and naringenin, all of which collectively comprise 25% of the product. However, the laboratory did not detect any starches or flavor or fragrance compounds. Based on its analysis, the laboratory concluded that the principal character of the hesperidin powder is that of bioflavonoids and polyphenols purified from a citrus extract.
The citrus bioflavonoid powder, like the hesperidin powder, is derived from the immature fruit of the Citrus sinensis. CBP did not receive a flowchart for production of the citrus bioflavonoid prior to the filing of the protest. The flowchart submitted after the filing indicates that, following the initial smashing of the fruit to a particle size of one millimeter, the residual material is washed, heated to 50 degrees Celsius along with the solvent, and supplemented with sodium hydroxide and periodically stirred, after which the process is repeated so as to produce a separate extract solution. Following this, the two extract solutions are mixed, filtered with paper, condensed to 2/3 volume, cooled to room temperature, deposited, flushed, spray dried at 55 degrees Celsius, and, finally, milled. The initial laboratory report describes the composition of the citrus bioflavonoid powder as made up, on a dry basis, of 12.83 percent hesperidin, 10.83 percent crude fiber, 6.29 percent polyphenols, 2.61 percent citric acid, 0.31 percent extractable fat, 10.79 percent total sugars, of which 4.03 percent is fructose, 2.50 percent is glucose, 3.33 percent is sucrose, and 0.93 percent is maltose, and 5.14 percent ash in the form of potassium and calcium. The laboratory also reported that the powder is comprised 41 percent of various naturally-occurring compounds, which include ten different flavor and fragrance compounds and the essential oil limonene, as well as fatty acids, organic acids, and beta sitosterol, but that starch is absent from the powder.
The eriocitrin powder is derived from the immature fruit of Citrus limon, i.e., the lemon. Initially the fruit is smashed to a particle size of about one millimeter. According to the earlier flowchart, the material is then extracted, dissolved, subjected to an undefined process involving the use of resin, eluted, concentrated, “purified” by unspecified means, dried, pulverized, and packaged. The later flowchart indicates that, after the initial smashing of the lemon fruit, the residual material is washed, heated to 50 degrees Celsius along with the solvent, supplemented with sodium hydroxide and periodically stirred, after which the process is repeated so as to produce a separate extract solution. Following this, the two extract solutions are mixed, filtered with paper, condensed to 2/3 volume, cooled to room temperature, deposited, flushed, spray dried at 55 degrees Celsius, and finally milled. According to the initial laboratory report, the eriocitrin powder contains, on a dry basis, 56.95 percent eriocitrin, 33.33 percent protein, 22.68 percent polyphenols, 10.91 percent citric acid, and 8.37 percent ash in the form of sodium chloride, which is not reflective of a natural composition. The laboratory also reported that various natural compounds are present in the powder, including twelve different flavor and fragrance compounds and the essential oils limonene, terpinene, terpineol, and terpin hydrate, as well as levoglucosenone, sugar-related compounds, naringenin, hesperidin, eriodictyol, and claposporide A, but that starch is absent from the powder. Based on its analysis, the laboratory concluded that the principal character of the hesperidin powder is that of bioflavonoids and polyphenols purified from a citrus extract.
The citrus PMF powder is derived from dried fruit peels or from dried fruits themselves. According to the earlier (and only) flowchart for production of the citrus PMF powder, the fruit or peels are first ground, after which the resulting material undergoes reflux extraction, separation and washing, and condensation. At that stage, the material is either dried and ground to produce the low-concentration “PMF A”, or, alternatively, subjected to further processing to create the high-concentration “PMF B.” This further processing includes dissolution, placement onto a resin-filled column, elution by organic solvent, further condensation, recrystallization, filtration, washing, and, lastly, drying and grinding. According to the second laboratory report, the citrus PMF powder contains, on a dry basis, 61 percent total flavonoids, 14.55 percent total polyphenols, 0.77 percent protein, 0.16 percent citric acid, 0.38 percent ash, and less than 1 percent starch or dextrin, which is most likely naturally-occurring. The laboratory noted that the polyphenolic content overlaps with the total bioflavonoid content, but does not overlap with the PMF content, and that the total flavonoid content overlaps with both the polyphenol content and the PMF content. The laboratory further noted that the PMF content consists of naringin, hesperidin, tangeretin, and nobiletin. Based on its analysis, the laboratory concluded that the principal character of the subject citrus polymethoxylated bioflavonoids is that of bioflavonoids and polyphenols purified from a citrus extract.
In both reports, the laboratory states as follows with regard to the use of resin and relatively low sugar, starch, and protein contents:
It has been our observation that the selective chromatographic absorption processes using either resins or membranes may tend to produce a product that is enriched in natural compounds that are either or both less hydrophilic and contain a more hydrophobic character in their structure, such as the flavonoids. These extracts are usually very low in the highly water soluble sugars, starches, and water soluble protein content.
Also, in subsequent communications between our office and the laboratory, the laboratory has stated that eriocitrin and hesperidin are glycosides, and that a simple orange extract typically contains 0.025 percent hesperidin.
ISSUE:
Whether the subject products are properly classified in heading 1302, HTSUS, as vegetable extracts, in heading 2932, HTSUS, as heterocyclic compounds, in heading 2938, HTSUS, as glycosides, or in heading 3824, HTSUS, as chemical preparations?
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 2704-12-102956 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because Protestant alleges that the decision against which the protest was filed is inconsistent with a prior CBP ruling concerning substantially similar merchandise.
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.
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs 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).
The HTSUS provisions 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:
1302.19 Other:
1302.19.91 Other
2932 Heterocyclic compounds with oxygen hetero-atom(s) only:
Other:
2932.99 Other:
Other:
2932.99.61 Products described in additional U.S. note 3 to section VI
2938 Glycosides, natural or reproduced by synthesis, and their salts, ethers, esters and other derivatives:
2938.90.00 Other
3824 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:
3824.90 Other:
Other:
3824.90.92 Other
At the outset, we note that the subject citrus extract powders can only be classified in heading 3824, HTSUS, if they are not classifiable in heading 2932 or heading 2938, or more specifically classifiable in heading 1302. See Cargill, Inc. v. United States, 318 F. Supp. 2d 1279, 1278-88 (Ct. Int’l. Trade 2004) (characterizing heading 3824 as a basket provision). Moreover, the subject products can only be classified in heading 1302, HTSUS, if they are not classifiable in heading 2938. See Chapter 13, Note 2, HTSUS (“The heading does not apply to…Camphor, glycyrrhizin or other products of heading 2914 or 2938.”). Consequently, we first consider whether the subject products are classifiable in heading 2932 or heading 2938.
Interpretation of heading 2932 and heading 2938 is governed by Note 1 to Chapter 29, which provides, in relevant part, as follows:
Except where the context otherwise requires, the headings of this chapter apply only to:
Separate chemically defined organic compounds, whether or not containing impurities;
…
(c) The products of headings 2936 to 2939 or the sugar ethers, sugar acetals and sugar esters, and their salts, of heading 2940, or the products of heading 2941, whether or not chemically defined…
With regard to “chemically defined” and “impurities” as referenced in Note 1(a) to Chapter 29, the EN to Chapter 29 states as follows:
A separate chemically defined compound is a substance which consists of one molecular species (e.g., covalent or ionic) whose composition is defined by a constant ratio of elements and can be represented by a definitive structural diagram. In a crystal lattice, the molecular species corresponds to the repeating unit cell.
…
The term “impurities” applies exclusively to substances whose presence in the single chemical compound results solely and directly from the manufacturing process (including purification). These substances may result from any of the factors involved in the process and are principally the following:
(a) Unconverted starting materials.
(b) Impurities present in the starting materials.
(c) Reagents used in the manufacturing process (including purification).
(d) By-products.
It should be noted, however, that such substances are not in all cases regarded as “impurities” permitted under Note 1(a). When such substances are deliberately left in the product with a view to rendering it particularly suitable for specific use rather than for general use, they are not regarded as permissible impurities.
EN 29.38 states, in pertinent part, as follows:
This heading also covers natural mixtures of glycosides and of their derivatives (e.g., a natural mixture of digitalis glycosides containing purpurea glycosides A and B, digitoxin, gitoxin, gitaloxin, etc.); but deliberate intermixtures or preparations are excluded.
As explicated by the EN to Chapter 29, Note 1(a) establishes that substances comprised predominantly of single molecular structures are classifiable in headings of Chapter 29. See also Richard J. Lewis, Sr., Hawley’s Condensed Chemical Dictionary 324 (15th ed. 2007) (similarly defining compound as “a homogeneous entity where the elements have definite proportions by weight and are represented by a chemical formula”). These substances may include impurities, defined as deviations from the defining molecular structure, so long as any such impurities result incidentally from the production process and are present in relatively minor proportional quantities. See EN to Chapter 29; Headquarters Ruling Letter (“HQ”) H026004, dated December 2, 2009 (classifying substance consisting at least 93% of a mixture of isomers of a separate chemically defined organic compound in heading 2921, HTSUS, on the grounds that remaining content consisted of impurities); HQ 967971, dated March 2, 2006; HQ 967972, dated March 2, 2006.
In addition to separate chemically defined glycosides with minor, incidental impurities, heading 2938 also includes, pursuant to Note 1(c) to Chapter 29, chemically heterogeneous mixtures of two or more such glycosides. See EN 29.38. As with other products covered by Note 1(c), such glycoside mixtures must be made up predominantly of glycosidic compounds. See, e.g., HQ 966448, dated July 9, 2004 (“Because Advantra Z® does not consist solely of the naturally occurring alkaloids found in the fruit of Citrus aurantium, but contains a great deal of other plant constituents, heading 2939, HTSUS, does not apply.”).
Here, none of the instant products’ chemical compositions can be described as a single organic compound with minor impurities or as a glycosidic mixture. The citrus eriocitrin powder is comprised 56.95 percent of eriocitrin, a known glycoside, and 58.11 percent of total defined glycosides, with no other single compound bearing such a high molecular weight. The most ubiquitous compound in both the hesperidin powder and citrus bioflavonoid powder is hesperidin, which constitutes 48.91 percent of the former and 11.76 percent of the latter. The citrus PMF powder contains 62.9 percent total flavonoids, but in the form of a chemical patchwork of structurally distinct flavones and glycosides, such as naringin, hesperidin, tangeretin, and nobiletin, in unspecified concentrations. Moreover, each powder contains numerous other substances, such as proteins, acids, and various other naturally-occurring compounds, which, in light of their relative abundance, cannot be considered mere impurities. Therefore, all four powders are accurately described as heterogeneous mixtures of various compounds, both glycosidic and non-glycosidic, that are neither separate chemically defined compounds nor mixtures of glycosides for purposes of Note 1 to Chapter 29. They are consequently excluded from heading 2932 and heading 2938.
We next consider whether the powders are, as Protestant asserts, classified in heading 1302, HTSUS, which covers vegetable extracts. EN 13.02 provides, in relevant part, as follows:
The heading covers saps and extracts (vegetable products usually obtained by natural exudation or by incision, or extracted by solvents)…
The saps and extracts classified here include:
Opium, the dried sap of the unripe capsules of the poppy (Papaver somniferum) obtained by incision of, or by extraction from, the stems or seed pods. It is generally in the form of balls or cakes of varying size and shape. However, concentrates of poppy straw containing not less than 50% are excluded from this heading…
(11) Quassia amara extract, obtained from the wood of the shrub of the same name (Simaroubaceae family), which grows in South America.
Quassin, the principal bitter extract of the wood of the Quassia amara, is a heterocyclic compound of heading 29.32…
(18) Papaw juice, whether or not dried, but not purified as papain enzyme. (The agglomerated latex globules can still be observed on microscopic examination.). Papain is excluded (heading 35.07)…
(20) Cashew nutshell extract. The polymers of cashew nutshell liquid extract are, however, excluded (generally heading 39.11)…
…Extracts may be in liquid, paste or solid form. “Tinctures” are extracts still dissolved in the alcohol by means of which they are extracted; the so called “fluid extracts” are solutions of extracts in, for example, alcohol, glycerol or mineral oil. 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 %). Solid extracts are obtained by evaporating the solvent. Inert substances are sometimes added to certain extracts so that they can be more easily reduced to powder (e.g., belladonna extract, to which powdered gum Arabic is added), or to obtain a standard strength (for instance, certain quantities of starch are added to opium in order to obtain a product containing a known portion of morphine). The addition of such substances does not affect the classification of these solid extracts.
The vegetable saps and extracts of this heading are generally raw materials for various manufactured products…
It is our long-standing position, consistent with EN 13.02, that heading 1302 applies to products that have been created through standard extraction methods, but not to those that have subsequently been enriched, purified, or otherwise refined so as to increase the contents of certain desirable compounds. See HQ H106785, dated October 14, 2010 (“CBP has determined that extensive processing can exclude a product from 1302.”); HQ 959099, dated May 1, 1998 (“As pointed out in the ENs to heading 1302, what is covered in the heading are vegetable products obtained by natural exudation or by incision or by solvent extraction.”). In Headquarters Ruling Letter (HQ) H195716, dated February 19, 2015, we provided the following justification for this position:
CBP’s position is supported by the text of EN 13.02. For example, opium is the dried sap of the unripe capsules of the poppy (Papaver somniferum), obtained by incision of or extraction from the stems or seed pods. Opium contains about 10% morphine. However, concentrate of poppy straw is a different product. A procedure for obtaining concentrate of poppy straw was first patented in 1935, and describes a process of drying the stems and pods of the poppy plant, treating them with sodium bisulphite, concentrating the aqueous solution into a paste by application of a vacuum, treating the paste with alcohol, and then precipitating the morphine base by treating the solution with ammonium sulphate and benzene, to yield a product with over 50% morphine. EN(1) to 13.02 (and Note 1(f) to Chapter 13, HTSUS) excludes concentrates of poppy straw containing not less than 50% by weight of alkaloids. In another example, quassia amara extract obtained from the bark of the Quassia amara shrub. The extract is used in herbal medicine, and contains numerous compounds including both beta-carbonile and cantin-6 alkaloids as well as, primarily, the bitter compounds known as quassinoids. Quassin (2,12-dimethoxypicrasa-2,12-diene-1,11,16-trione, CAS No. 76-78-8) however, is a specific chemical compound contained in the Quassia amara shrub. A patented procedure for obtaining quassin describes a process which percolates first the gum or residue of the wood chips of the Quassia amara shrub in ethanol and evaporates the solvent, then dissolves the residue in water and washes it with hexane. The hexane fraction is discarded, and sodium chloride is added to the aqueous fraction. A residue is extracted using ethyl acetate and the crystallized into quassin and neoquassin. This process yields a crystal composed of 39% quassin. This chemical is one of the most bitter substances found in nature, and is used mainly as a food additive. EN(11) to 13.02 excludes quassin from classification under the heading, and directs it to be classified under heading 29.32. In these examples, EN 13.02 excludes products extracted from plants which undergo extensive further processing. See EN(1), (11), (18), and (20) to 13.02.
See also HQ H061203, dated August 12, 2010 (“There appears to be a limit on the degree and extent of purification that can occur for the product to remain in heading 1302. For instance, EN 13.02, explicitly excludes certain refined extracts of opium, quassia amare, papaw juice, and cashew nut shell liquid, once the refining process concentrates a certain group of chemical compounds to a particular point. Hence, poppy straw concentrates containing more than 50% alkaloids are excluded from heading 1302. Likewise, quassin, a chemical compound extracted and refined from the quassia amara shrub is classified in Chapter 29. Papain enzyme, once purified from the extraction process of papaw juice, is classified as an enzyme of Chapter [35]. And polymers extracted and refined from cashew nut shell liquid are classified in Chapter 39 as polymers.”); HQ H237599, dated May 27, 2015; and HQ W968424, dated December 19, 2006.
Consistent with this interpretation, we have regularly excluded from heading 1302 products that are inordinately pure in chemical content owing to the use of purification methods following initial extraction. See, e.g., HQ W967214 (ruling that a powder comprised 80% of mogroside was not covered by 1302 where the powder had undergone cation exchange resin and centrifugation); HQ 966566, dated October 21, 2003 (excluding from 1302 a beige powder whose subjection to re-dissolution in ethyl acetate and precipitation in chloroform resulted in 90% oligomeric proanthocyanidin (OPC) content); HQ 965030, dated May 20, 2002. We have long held that when chromatography achieves chemical homogeneity, the resulting chemical substance is not classified in heading 1302. See, e.g., HQ H061203, dated August 12, 2010 (excluding merchandise from heading 1302 due to use of chromatography and other purification methods during its manufacture); and HQ 966448 (“The use of this chromatographic procedure in the preparation of these products exclude them from classification as vegetable extracts in heading 1302, HTSUS.”). Our position regarding the use of chromatography as a purification technique is supported by our recent research, which confirms that the procedure is used to separate organic material for the purpose of obtaining a high degree of purity in the final product. See Biopolymer Engineering in Food Processing 219-20 (Vania Regina Nicoletti Telis, ed., CRC Press 2012); Robert J. Hurtubise, Encyclopedia of Chromatography 21 (Jack Cazes, ed., Taylor & Francis Group 2d. ed. 2005). We have also surveyed comparable extraction processes and found that, while chromatography may have other applications within the chemical industry, it is used to purify extracts following initial extraction. See, e.g., U.S. Patent No. 8,968,811 (describing hydroxytrosol containing extract obtained from olives and solids containing residues of olive oil extraction).
Here, the original flowcharts corresponding to the citrus eriocitrin and citrus PMF powders plainly indicate that the powders have undergone purification measures. The flowchart for the citrus eriocitrin powder explicitly lists “purification” as a step in the powder’s production process. Both flowcharts reference the use of resin; specifically, the citrus eriocitrin powder flowchart lists “resin” and “elution” as production steps and the citrus PMF powder flowchart lists “loading on column (resin filled)” and “eluting (by organic solvent).” The laboratory noted in its reports that resin is used in connection with chromatographic absorption processes, and our own research confirms as much. Van Nostrand’s Encyclopedia of Chemistry 329 (Glenn D. Considine, ed., John Wiley & Sons, Inc. 5th ed. 2005) (discussing the use of resin in liquid-column chromatography); see also HQ 966448 (characterizing cation resin isolation as a chromatographic procedure); U.S. Patent No. 20100256079 (describing eriocitrin-containing material, method for production of the eriocitrin-containing material, and food, beverage, pharmaceutical preparation and cosmetic each comprising the erocitrin-containing material). Our research further indicates that elution is a common step in chromatographic or other purification procedures. Peter Kumpalume & Siddhartha Ghose, Chromatography: The High-Resolution Technique for Protein Separation, Isolation and Purification of Proteins 44 (ed. Rajni Hatti-Kaul, Bo Mattiasson).
We acknowledge that the Protestant has subsequently submitted flowcharts that do not list purification methods among the production steps for these powders, but we are unable to reasonably rely on these later flowcharts in determining the powders’ production processes. For one thing, the Protestant presented the later flowcharts to CBP only after being made aware that the use of purification techniques in the production processes brought the powders outside the scope of heading 1302, which is the heading for which the Protestant claims classification of the powders. Moreover, the powders’ chemical compositions, inordinately pure in certain compounds and unnaturally devoid of others, likely could not have been achieved but for the use of purification measures. The citrus eriocitrin powder is made up 56.95 percent of the bioflavonoid eriocitrin and 22.68 percent of total polyphenols, and while it is also high in protein content, contains no starch. Similarly, the citrus PMF powder contains 61 percent total flavonoids and 14.55 percent total polyphenols, but contains only 1 percent starch and less than 1 percent protein. The laboratory reports that these compositions are far purer than those that would normally be achieved through simple extraction of citrus fruits or peels. The laboratory further noted that almost the entire 8.37 percent ash content in the eriocitrin powder is comprised of sodium chloride, suggesting an unnatural composition. Based on its observations, the laboratory described the principal characters of the eriocitrin and citrus PMF powders as bioflavonoids and polyphenols purified from citrus extracts. In view of the laboratory report and the Protestant’s earlier admissions that purification techniques were used in these powders’ production, we conclude that the citrus eriocitrin and citrus PMF powders have in fact been purified and are not classifiable in heading 1302.
Unlike with the citrus eriocitrin and citrus PMF powders, the flowcharts for the hesperidin and citrus bioflavonoid powders do not clearly indicate that either powder has been created through purification steps. However, the chemical composition of the hesperidin powder is, like those of the citrus eriocitrin and citrus PMF powders, so unnaturally homogenous as to leave no other conclusion than that its production involved extensive concentration, purification, or similar refinement. The 48.91 percent hesperidin content in the powder represents a near 2,000-fold increase over the trace amounts of the compound present in the laboratory’s representative orange extract and, according to the laboratory’s analysis, imparts the powder with the principal character of an extract enriched in bioflavonoids. While not quite as pure as the hesperidin powder, the citrus bioflavonoid powder boasts a hesperidin content 500 times greater than that of the representative orange extract. The sole corresponding flowchart, submitted following Protestant’s communications with the Port regarding the powder’s eligibility for heading 1302, indicates that the powder has been produced through repeated extraction and filtration. Even assuming that this flowchart is accurate and does not omit the use of additional purification measures, the powder has been extensively refined so as to create a product enriched in certain chemical compounds. Both it and the hesperidin powder are consequently excluded from heading 1302.
Protestant asserts that the exclusion of the four subject powders from heading 1302 is inconsistent with New York Ruling Letter (NY) 859656, dated February 13, 1991, in which CBP classified a Silymarin extract in this heading. Specifically, Protestant contends that the extract at issue in that ruling “was purified through much more complex multiple-cycle processing, although it is also from natural sources.” However, there is no discussion in NY 859656 of either the production process or chemical composition of the Silymarin extract. In fact, CBP specifically instructed the inquirer in its letter that “when this product is imported you may be required to submit a manufacturer’s process flow chart to substantiate how the manufacturer produced this product.” Given the paucity of information concerning the product in that case, we are unconvinced that its classification in heading 1302 is inconsistent with our exclusion of the four powders from this heading.
We accordingly consider whether the powders are classifiable in heading 3824, HTSUS, which provides for “chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included.” Note 1(a) to Chapter 38 provides, in relevant part, as follows: “This Chapter does not cover…Separate chemically defined elements or compounds…” Additionally, EN 38.24 states, in pertinent part, as follows:
(B) CHEMICAL PRODUCTS AND CHEMICAL OR OTHER PREPARATIONS
With only three exceptions… this heading does not apply to separate chemically defined elements or compounds.
The chemical products classified here are therefore products whose composition is not chemically defined, whether they are obtained as by-products of the manufacture of other substances (this applies, for example, to naphthenic acids) or prepared directly.
The chemical or other preparations are either mixtures (of which emulsions and dispersions are special forms) or occasionally solutions…
Consistent with General Note 1 to Chapter 38 and the EN 38.24, it is CBP’s practice to classify products in heading 3824 where they lack the chemical homogeneity to qualify as a product of a Chapter 29 heading, yet have been so enriched or purified so as to fall outside the scope of heading 1302. See HQ H195716; HQ H061203; HQ 959099. The subject powders, as enriched or purified chemical products not classifiable in heading 2932 or heading 2938, are properly classified in heading 3824.
HOLDING:
By application of GRI 1, the subject citrus eriocitrin powder, hesperidin powder, citrus bioflavonoid powder, and citrus polymethoxy flavone powder are classified in heading 3824, HTSUS, specifically in subheading 3824.90.9290, HTSUSA, which provides 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: Other: Other: Other: Other.” The general column one rate of duty is 5.0% ad valorem.
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/tata/hts/.
You are instructed to DENY the protest, except to the extent reclassification of the citrus eriocitrin powder, hesperidin powder, and citrus bioflavonoid powder as indicated above results in a partial allowance. With regard to the citrus polymethoxy flavone powder, since the rate of duty under the classification indicated above is higher than the liquidated rate, you are instructed to DENY the protest in full.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP 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 International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division