CLA-2 RR:CTF:TCM 967214 KBR
Andrew L. Rubman, ND
BioVittoria
27 Stony Corner Lane
Southbury, CT 06488
RE: Reconsideration of NY K84522; Lo Han Guo Powder
Dear Mr. Rubman:
This is in reference to your letter of June 8, 2004, requesting reconsideration of New York Ruling Letter (NY) K84522, issued to you by the Customs and Border Protection (“CBP”) National Commodity Specialist Division, on April 9, 2004, concerning the classification of lo han guo powder, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We have reviewed NY K84522 and have determined that the classification provided is correct.
FACTS:
NY K84522 concerns lo han guo powder imported from China. Lo han guo (Siraitia Grosvenori) is a fruit, member of the Curcubitaceae gourd family. The fruit is round and green and turns brown when it is dried. The dried powder created from the fruit has a sweet taste which comes primarily from mogrosides, a group of terpene glycosides. The powder is used as a sweetner in foods and as an herb in “traditional medicines” and teas.
A process for making the lo han guo powder was patented in 1995. The process is used to remove undesired flavors created by the drying process. The patented process entails picking the fruit before it is ripe and completing the ripening process during storage. The peel and seeds are removed and the fruit is mashed or pressed to become the basis for a concentrated fruit juice or puree. The pulp solids are removed from the juice to less than 2%. The juice is acidified to a ph of less than 5.3 (preferably 3.8 to 4.2) by using a selected acid including citric acid, malic acid, lactic acids, tartaric acid, acetic acid, phosphoric acid, sulfuric acid, hydrochloric acid or a mixture thereof. Acidified juice is lighter in color, less bitter, and does not gel when it is concentrated.
The juice is homogenized in a high speed mixer to reduce the particle size to less than 850 microns. Next, solvents are used to remove volatile and undesirable components which produce sulfurous or vegetable-like odors and off-flavors such as at least 80% of the sulfur containing amino acids. The process reduces the amino-nitrogen compounds of the juice, which include sulfur-containing amino acids, peptides and proteins by at least 70% while reducing the mogroside or other sweet terpene glycosides content by no more than 20%.
Off-flavor materials and precursors are removed from the juice by use of an ion exchange resin, such as a cation exchange resin. The ion exchange resin removes sulfur-containing amino acids quicker than it removes mogrosides. Therefore, the time the ion exchange resin is used is limited to maximize the removal of sulfur-containing compounds but minimize the removal of mogrosides. The resulting ion exchange resin adsorbent, fining agent, precipitate material is removed from the juice by filtration or centrifugation. At least 50% of the methylene chloride extractable volatiles fractions are removed from the juice.
The juice is treated with pectinase to remove substantially all the pectin in the juice. Also used to remove off-flavor materials and precursors are adsorbing and/or fining agents such as activated charcoal, bentonite, bleaching earth, kaolin, perlite, diatomaceous earth, cellulose, cyclodextrin polymer, and insoluble polyamide (e.g. nylon). The juice may also be treated with precipitating agents such as gelatin, tannin/gelatin, sparkolloid, and water colloidal solutions of silicic acid (silica). An evaporator or concentrating equipment is used to remove certain volatiles from the juice and to concentrate it to from 15 degree Brix to 65 degree Brix (“Brix” is essentially equal to the percent of solid content). The concentrated juice is heated to deactivate enzymes and pasteurize the juice. The solution is mechanically dried and packed in mylar-aluminum bags in 5 kg amounts.
In NY K84522, it was determined that the lo han guo powder was classifiable under subheading 3824.90.9150, HTSUSA (now subheading 3824.90.9190, HTSUSA), as “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.” You believe the lo han guo powder should be classified as an extract under heading 1302, HTSUSA.
ISSUE:
Whether the lo han guo powder is classified as an extract of heading 1302, HTSUSA, or as a chemical product of heading 3824 HTSUSA?
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUSA in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUSA 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 interpreting the headings and subheadings, CBP looks to the Harmonized Commodity Description and Coding System Explanatory Notes (EN). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUS. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUSA 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:
1302.19.90 Other:
1302.19.9040 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:
Other:
Other:
3824.90.91 Other:
3824.90.9190 Other
EN 13.02 states, in pertinent part, the following:
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 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% by weight of alkaloids are excluded from this heading (see Note 1(f) to this Chapter).
(4) Pyrethrum extract, obtained mainly from the flowers of various pyrethrum
varieties (e.g.,Chrysanthemum cinerariaefolium) by extraction with an organic
solvent such as normal hexane or “ petroleum ether ”.
(11) Quassia amara extract, obtained from the wood of the shrub of the same name
(Simaroubaceae family), which grows in South America.
(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).
Examples of excluded preparations are:
(iv) Intermediate products for the manufacture of insecticides, consisting of
pyrethrum extracts diluted by addition of mineral oil in such quantities that the pyrethrins content is less than 2 %, or with other substances such as synergists (e.g., piperonyl butoxide) added (heading 38.08).
Heading 1302, HTSUSA, describes vegetable extracts. The ENs provide that vegetable products are usually obtained by natural exudation or by incision, or extracted by solvents. Furthermore, the ENs distinguish products of heading 1302, HTSUS from products of heading 3301, HTSUS, by the amount of plant material they contain. Research into the extracts described by the ENs, however, reveals a variety of extraction and refining techniques. For instance, in HQ 963848 (April 20, 2002), CBP took note of the EN that allows pyrethrum products containing over 2% pyrethrum to remain classified in heading 1302, HTSUS, in classifying a 50% pyrethrum product in heading 1302, HTSUS. We did so even though the original extracted oleoresin had been further purified removing much of the variety of material in the pyrethrum plant and thereby concentrating the pyrethrum content.
However, there is a limit on the degree and extent of purification that can occur for the product to remain in heading 1302. See HQ 967972 (March 2, 2006). 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 37. And polymers extracted and refined from cashew nut shell liquid are classified in Chapter 39 as polymers.
CBP found that when a product reaches a certain level of purity it is no longer considered an extract, stating that “substances obtained from a plant are not considered “vegetable extracts” if they only contain one ingredient divorced from the composition of the vegetable source.” HQ 966566 (October 21, 2003). Further, CBP determined that extensive processing can exclude a product from heading 1302. In HQ 959099 (May 1, 1998), CBP stated that “[t]he products in this case are the result of far more than simple processing. They go through several extractions, refining processes, and even centrifugation…. In other words, the products cannot be classified in heading 1302 as extracts or mixtures of extracts. They are formulated products far advanced from the extracts which would be classified in chapter 13.” Specifically, CBP determined that the use of a “cation resin isolation”, similar to the process used for creating the lo han guo powder, excludes a product from classification as a vegetable extract in heading 1302. See HQ 966448 (July 9, 2004). In this case, the lo han guo powder is over 80% mogroside and undergoes extensive processing using methods described above such as a cation exchange resin and centrifugation. Therefore, the lo han guo powder is a relatively pure extensively processed chemical product and cannot be classified as an extract.
Therefore, we find the lo han guo powder is classified in heading 3824, specifically in subheading 3824.90.9190, HTSUSA, as “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.”
HOLDING:
The lo han guo powder is classified in heading 3824, specifically in subheading 3824.90.9190, HTSUSA, as “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 2006 column one, general rate of duty rate is 5% ad valorum. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts.
EFFECT ON OTHER RULINGS:
NY K84522, dated April 9, 2004, is AFFIRMED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division