CLA-2 OT:RR:CTF:TCM W968370 ARM
Port Director
U.S. Customs and Border Protection
301 E. Ocean Blvd. Suite 1400 Long Beach, CA 90802
Re: Protest and Application for Further Review No: 2720-06-100409; TOYO-FVG water extracted Pine Bark Extract
Dear Port Director:
The following is our decision regarding Protest 2720-06-100409, timely filed on July 12, 2006, regarding classification of TOYO-FVG water extracted Pine Bark Extract, under the Harmonized Tariff Schedule of the United States (HTSUS). The protest describes one entry on April 15, 2005, under subheading 1302.19.90, HTSUS, which provides for vegetable extracts. CBP liquidated the entry on May 19, 2006, in subheading 3824,90.28, HTSUS, as a chemical preparation.
FACTS:
The instant pine bark extract is a reddish brown powder extracted with water from French maritime pine bark. It is imported in bulk powder. Pine bark is high in procyanidin content. It is used in the dietary supplement and cosmetics industries. The instant merchandise, Pycnogenol®, is standardized to contain 60-75% procyanidins. Procyanidins are a mixture of proanthocyanidin compounds in different degrees of polymerization. Some of the procyanidins are catechins with a chemical formula of, dimers (two degrees), trimers (three degrees), etc” (The Merck Index, 11th ed.). While concentrating the procyanidins in the pine bark, the extraction process used here leaves intact a variety of naturally occurring phenolic and polyphenolic compounds and their derivatives as well as non-flavonol components.
Furthermore, although the product is standardized to contain 60-75% procyanidin content, product literature states that it contains 40% OPC (oligomeric proanthocyanidins) content, and a Customs laboratory report on similar merchandise found only 41% procyanidin content.
ISSUE:
Is TOYO-FVG water extracted Pine Bark Extract classified as a vegetable extract of heading 1302, HTSUS?
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 90 days of liquidation of the first entry for entries made before December 18, 2004, and within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (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. 2720-06-100409 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed involves specific factual and legal questions that have not been the subject of a Headquarters ruling or court decision. Specifically, the issue is whether bulk powdered pycnogenol containing approximately 40% (OPCs), is classified in heading 1302, HTSUS.
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
* * * * * * * * * * * *
2106 Food preparations not elsewhere specified or included:
2106.90 Other:
Other:
Other:
Other:
Other:
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; residual products of the chemical or allied industries, 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 headings 2106 and 3824, HTSUS, referring to food supplements and chemical products and preparations, respectively, 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 headings 2106 and 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. Hence, substances obtained from a plant are not considered “vegetable extracts” of heading 1302, if they only contain one ingredient divorced from the composition of the vegetable source.
In Headquarters ruling (HQ) 967972, dated March 2, 2006, we stated the following:
However, 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 37. And polymers extracted and refined from cashew nut shell liquid are classified in Chapter 39 as polymers.
"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 either 40% OPCs or 60-75% procyanidins. Protestant has not explained this discrepancy. However, the water extraction process described is a solvent extraction process mentioned in EN 13.02, such that protestant’s literature claiming 40% OPCs is likely correct. The ENs specified above indicate that the level of purity of the extract is a determining factor for inclusion in heading 1302, and not solely the method of extraction. For the product under consideration, the extraction technique is solvent based, and the product is not specified in other tariff provisions. Hence, the merchandise is not similar to those products specifically excluded from the heading by EN 13.02 and it meets the terms of the heading as a vegetable extract.
Moreover, the instant product differs substantially from the products described in HQ 966566, dated October 21, 2003, and in HQ 968428, dated December 19, 2006. The subject merchandise in the former ruling was alleged to contain a much higher 90% proanthocyanidins content. The subject merchandise in the latter ruling was alleged to contained between 76 to 87% proanthocyanidin content and was subjected to a further refining process. Without more evidence that the merchandise in the above rulings is substantially similar to that of the instant protest, we decline to follow the classification analysis of those rulings. Furthermore, because the merchandise is described by the terms of heading 1302, both headings 2106 and 3824, HTSUS, can not be applied because the merchandise falling in those headings can not be included elsewhere.
HOLDING:
By application of GRI 1, TOYO-FVG water extracted Pine Bark Extract is classified in heading 1302, HTSUS, specifically in subheading 1302.19.90, HTSUS, which provides for: “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: Other.” You are instructed to ALLOW 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 Home Page on the World Wide Web 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