CLA–2 OT:RR:CTF:TCM H262217 NCD
Port Director, Port of Blaine
U.S. Customs and Border Protection
9901 Pacific Highway
Blaine, WA 98230
RE: Revocation of HQ 964139, dated April 19, 2002, NY N219927, dated June 27, 2012, and NY N037866, dated October 3, 2008; modification of HQ 967972, dated March 2, 2006, and NY 814027, dated February 2, 1996; Bilberry and blueberry extract powders
Dear Port Director:
This letter is to inform you that U.S. Customs and Border Protection (“CBP”) has reconsidered Headquarters Ruling Letter (HQ) 964139, dated April 19, 2002, in which we granted a May 12, 2000 protest filed on behalf of Baralex, Inc. concerning classification of bilberry dry hydroal extract (“bilberry extract” or “subject merchandise”) under the Harmonized Tariff Schedule of the United States (HTSUS). In HQ 964139, we classified the instant bilberry extract in subheading 1302.19.40, 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: Other: Ginseng; substances having anesthetic, prophylactic or therapeutic properties: Other.” We have reviewed HQ 964139 and found it to be incorrect with respect to the classification of the subject bilberry extract. For the reasons set forth below, we are revoking this ruling.
In addition to HQ 964139, CBP is revoking NY N219927, dated June 27, 2012, and to modify HQ 967972, dated March 2, 2006, and NY 814027, dated February 2, 1996, all of which involve classification of bilberry extracts under heading 1302, HTSUS. CBP is also revoking NY N037866, dated October 3, 2008, in which we classified a blueberry extract under heading 1302, HTSUS.
As an initial matter, we note that under San Francisco Newspaper Printing Co. v. United States, 620 F. Supp. 738 (Ct. Int’l Trade 1985), the decision on the merchandise which was the subject of Protest No. 3004-00-100090 was final and binding on both the protestant and CBP. Therefore, while we may review the law and analysis of HQ 964139, any decision taken herein would not impact the entries subject to that ruling.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed action was published in the Customs Bulletin, Vol. 49, No. 51, on December 23, 2015. Two comments concerning the proposed action, submitted by Barlow & Co. LLC (“Barlow”) and The American Herbal Products Association (“AHPA”), were received in response to the notice. Both comments are addressed in this decision.
FACTS:
In HQ 964139, we described the subject bilberry powder as follows:
Bilberry dry hydroal extract powder 25% anthocyanide content is extracted from Vaccinium myrtillus berries. The process by which the anthocyanides are obtained from the plant is as follows: Billberry fruits are extracted with ethanol. The eluate is concentrated under vacuum, purified by a process of column separation that removes much of the tannins and other plant material, then concentrated and standardized to 25% anthocyanide content. This liquid is dried and crushed into a powder. It is imported in bulk powder form packed in plastic bags inside 10 kilogram fiberboard boxes. Additional information received from the importer indicates that the merchandise is pure plant material on importation without added carriers. Maltodextrin and other excipients are added at the time of encapsulation after entry.
We classified the subject merchandise in subheading 1302.19.40, HTSUS, upon finding that it was substantially similar to the merchandise in NY 814027 and concluding that NY 814027 was consequently “dispositive of this issue.”
NY 814027 involved classification of a bilberry powder and three other powders described as follows:
The four subject products, which [the importer] describes as "standardized herbal extracts", consist of four plant extracts, namely: Gingko biloba dry extract; Milk thistle (Silybum marianum); Leucoanthocyanins [(grape seed) Vitis vinifera]; and Bilberry (Vaccinium myrtillus). [The importer has] submitted flow charts from the manufacturer outlining the solvent extraction process used for each product, and [has] indicated in [its] letter that these extracts will be imported in bulk-powder form. [The importer] further indicate[s] that, subsequent to importation and sale…the extracts are combined with other ingredients and further processed into capsules and other similar forms for retail sale.
CBP classified the bilberry powder at issue in that case in subheading 1302.19.40, HTSUS. Although not stated in the ruling letter, we noted in HQ 964139 that the bilberry powder of NY 814027 was comprised 25% of anthocyanoside content. Also, in HQ 967972, in which we affirmed the portion of NY 814027 concerning classification of the bilberry powder, we noted that “all four of the substances in NY 814027 are obtained by sophisticated means such as solvent-solvent extraction, distillation, dialysis, chromatographic procedures, electrophoresis, etc.” and that “these processes result in a substance containing a targeted chemical compound or compounds along with ubiquitous plant material that need not be further removed for the manufacturers’ purpose.”
In NY N037866, we described the blueberry powder at issue as follows:
The subject product is an extract made from blueberries. Additional information was requested from you regarding the extraction process. In the supplementary documents submitted, you indicated that the extract is not a juice, but is an extract obtained from the blueberry fruit…Documentation provided indicates that the powdered extract contains approximately 20 percent anthocyanosides and 40 percent total polyphenols. The powdered extract will be used as a raw material in the production of dietary supplements.
According to the ruling, the manufacturing process for the blueberry powder entails pressing, initial alcohol extraction, subsequent elution, drying, filtration, and sterilization. CBP classified the powder in subheading 1302.19.91, 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.”
Finally, in NY N219927, we described the bilberry powder at issue as follows:
The subject product, Bilberry Extract Powder 25% is a fine, ground powder of the Bilberry fruit…In the flow chart you submitted, it is indicated that the Bilberry fruits are extracted with ethanol, filtered, and undergo absorption by resin. The extract undergoes various processing to remove the ethanol, dry, grind, mix, and filter the product prior to packaging. The extract is standardized to a phenol and flav[o]noid content of 70% and 38%, respectively. According to [the importer’s] submission, various non-phenolic plant compounds will remain in the finished extract. [The importer] indicate[s] that 30 percent of the finished extract consists of non-phenolic plant compounds which remain from the extracted fruit. The powdered extract will be use[d] as a raw material in the production of dietary supplements.
CBP classified the bilberry powder in subheading 1302.19.91, HTSUS.
ISSUE:
Whether the instant powders are properly classified in heading 1302, HTSUS, as vegetable extracts, in heading 2907, HTSUS, as polyphenols, or in heading 3824, HTSUS, as chemical preparations.
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.
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 the headings. It is CBP’s practice to consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The 2016 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:
Ginseng; substances having anesthetic, prophylactic or therapeutic properties:
1302.19.91 Other
2907 Phenols; phenol-alcohols:
Polyphenols; phenol-alcohols:
2907.29 Other:
2907.29.90 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:
3824.90.92 Other
At the outset, we note that the subject merchandise can only be classified under 3824, HTSUS, if it is not more specifically classifiable elsewhere in the Nomenclature. See Cargill, Inc. v. United States, 318 F. Supp. 2d 1279, 1278-88 (Ct. Int’l. Trade 2004). Accordingly, we first consider whether the instant bilberry and blueberry powders fall under the scope of heading 1302, HTSUS, or, alternatively, heading 2907, HTSUS.
Heading 1302, HTSUS, 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) 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% are excluded from this heading (see Note 1 (f) to this Chapter).
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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.”
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Ginseng extract, obtained by water or alcohol extraction, whether or not put up for retail sale.
Mixtures of ginseng extract with other ingredients (e.g., lactose or glucose) used for the preparation of ginseng “tea” or beverage are excluded (heading 21.06).
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(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.
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(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).
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(20) Cashew nutshell extract. The polymers of cashew nutshell liquid extract are, however, excluded (generally heading 39.11).
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Saps are usually thickened or solidified. 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%)…
The term “extract” is not defined in heading 1302, HTSUS, or elsewhere in the Nomenclature. Undefined tariff terms are construed in accordance with their common meanings, which may be ascertained by reference to "dictionaries, scientific authorities, and other reliable information sources” and “lexicographic and other materials,” as well as the pertinent ENs. GRK Can., Ltd. v. United States, 761 F.3d 1354, 1357 (Fed. Cir. 2014); Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356-1357 (Fed. Cir. 2001). Numerous sources and authorities, including periodicals, publications in scientific journals, and product overviews offered by extract retailers, all indicate that the term “extract,” when referenced in the context of botanical solvent extraction, denotes a substance obtained by dissolution of the starting plant material. See Headquarters Ruling Letter (HQ) 965030, dated May 20, 2002 (citing United States Pharmacopeia and Remington's Pharmaceutical Sciences); S.S. Handa, An Overview of Extraction Techniques for Medicinal and Aromatic Plants in Extraction Technologies for Medicinal and Aromatic Plants 21 (U.N. Industrial Development Organization and the International Centre for Science and High Technology 2008) [Handa] (“Extraction, as the term is used pharmaceutically, involves the separation of medicinally active portions of plant or animal tissues from the inactive or inert components by using selective solvents in standard extraction procedures. The products so obtained from plants are relatively impure liquids, semisolids or powders intended only for oral or external use.”); S. Sasidharan et. al., Extraction, Isolation and Characterization of Bioactive Compounds from Plants’ Extracts, Vol. 8, No. 1 Afr. J. of Traditional, Complementary and Alternative Med. 2 (2011) [Sasidharan] (describing extraction steps); Berkem, All About Plant Extraction, http://www.berkem.com???/en?/content?/all-about-plant-extraction-15 (“A plant extract must, by definition, be obtained from a solid-liquid extraction.”); Becarre Natural, In Fact, What is an Extract?, http://www.becarre-natural.com?/extraction.php (“A plant extract is a substance or an active with desirable properties that is removed from the tissue of a plant, usually by treating it with a solvent, to be used for a particular purpose.”). While these sources provide that extracts may be standardized, they unanimously distinguish “extraction,” which is effected by maceration, infusion, decoction, percolation, digestion, or other solid-liquid extraction methods, from subsequent “isolation,” “purification,” or “separation” stages, in which the concentrations of certain compounds are increased by means of chromatographic purification or similar techniques. See HQ 965030, supra; Handa, supra, at 21-33 (surveying extraction methods and listing steps involved in extraction); Sasidharan, supra at 2-3 (listing extraction techniques); Plant Medicine: Herbal Extraction Methods, Mother Earth Living, Sept./Oct. 1998, http://?www.motherearthliving.com??/Health-and-Wellness/???HERBAL-EXTRACTS.aspx (describing extraction steps).
This widespread understanding of “extract” as encompassing only substances obtained by initial extraction of solid plant material finds support in several portions of EN 13.02. For example, solvent extraction as a means of extract obtention is placed in a series with exudation and incision, both of which are performed on solid plant material. Additionally, the EN states that extracts “contain a far higher proportion of other plant substances” than do isolated substances such as essential oils, indicating that the former are not subject to purification. Consistent with this, it lists various examples of extracts, including opium, quassia amara, papaw juice, and cashew nutshell extract, which, once purified to a degree that would not be achievable by solvent extraction of the biomass, are no longer classifiable in heading 1302, HTSUS. Finally, in setting forth permissible post-extraction steps, the EN identifies standardization as such a step and indicates that it is accomplished by dilution, rather than purification, following solvent extraction with an “organic solvent.” Conspicuously absent from the explanation of permissible post-extraction steps are any references to chromatographic purification or any other method of further purifying liquid extracts.
Accordingly, it is CBP’s position that heading 1302, HTSUS, applies to products that have been created through dissolution of plant material and subjected to limited post-extraction processing, but not to those that have subsequently been advanced by chromatographic purification or similar steps. See HQ H106785, dated October 14, 2010 (classifying extract in heading 1302, HTSUS, upon determining that “[t]he products are solvent-obtained extracts, not further subjected to extraordinary processing to isolate a single compound or family of compounds”); 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.”). The latter are therefore excluded from heading 1302, HTSUS, and must be classified elsewhere. See HQ H061203, supra (“It is thus the opinion of this office that phenolic compounds are targeted and further concentrated in the extraction and purification process, resulting in a relatively pure chemical product that can no longer be considered a simple extract of heading 1302, HTSUS.”); HQ W968424, dated December 19, 2006 (excluding from heading 1302 a pine bark product that had undergone reverse osmosis); HQ W967214, dated April 4, 2006 (excluding luo han guo powder from heading 1302 where it had undergone cation ion exchange so as to render it a “relatively pure extensively processed chemical product”); and HQ 966448, dated July 9, 2004 (“The use of this chromatographic procedure in the preparation of these products exclude them from classification as vegetable extracts in heading 1302, HTSUS.”).
Here, the instant powders have all undergone some form of chromatographic purification. The bilberry powder at issue in HQ 964139 is “purified by a process of column separation,” a form of chromatography, while the powder in NY 814027 is subjected to unspecified “chromatographic procedures.” Similarly, the bilberry powder in NY N219927 and blueberry powder in NY N037866 undergo, respectively, absorption by resin and elution, both of which are common steps in chromatographic or other purification processes. See HQ 966448, supra (characterizing cation resin isolation as a chromatographic procedure). Our research indicates that chromatographic purification of liquid bilberry and blueberry solutions results in the increase of the solutions’ anthocyanoside content to concentrations that would not be achievable solely by initial solvent extraction. See, e.g., Can. Patent No. 2,421,109 (issued May 3, 2011) and (U.S. Patent No. 7,462,370 (issued Dec. 9, 2008) (describing purification of “crude” bilberry extracts by means of column purification); China Patent No. 101,215,424 (issued June 2, 2010) (describing purification of bilberry extract by means of resin adsorption). Consequently, having been purified by chromatographic purification following extraction, the instant powders are excluded from heading 1302, HTSUS.
In opposing the instant action, both commenters urge CBP to adopt broader definitions of “extract” that would encompass the subject products. Citing dictionary definitions and a university laboratory manual, Barlow asserts that “an extract from plant material remains an extract from plant material” within the meaning of heading 1302 even after undergoing subsequent purification. However, neither of the dictionary definitions cited actually indicate this, either explicitly or implicitly. For its part, the AHPA relies almost entirely upon a definition of “semi-purified extract” from its own publication in contending that extracts may be purified following initial solid-liquid extraction. Moreover, it concedes that “extract” is contradictorily defined elsewhere in its own publications as a “complex, multicomponent mixture obtained after using a solvent to dissolve components of the biomass,” a definition that is consistent with that set forth above. Given the preponderance of sources clearly distinguishing extraction from purification in defining the term extract, we are not inclined to adopt a broader definition of the term based upon self-promulgated definitions and an excerpt from a single neutral source.
AHPA additionally contends that Remington's Pharmaceutical Sciences (“Remington’s”) and United States Pharmacopeia (“USP”), cited in previous CBP rulings, actually support such a broader definition of extract. Specifically, AHPA’s argument goes, Remington’s states that extracts may be standardized after extraction while the USP sets forth monographs of relatively pure extracts. However, as explained in EN 13.02, the steps described in Remington’s specifically occur following rendition of the extract to dry, finished form, at which point standardization entails reducing rather than increasing concentrations of certain compounds and classes through the addition of excipients. Moreover, the USP monographs cited all describe substances obtained from solid-liquid extractions and make no reference to post-extraction purification steps.
Both Barlow and AHPA also contend that CBP’s reliance on EN 13.02 in excluding purified extracts from heading 1302, HTSUS, is misplaced. Specifically, the commenters assert that the exemplars of opium, quassia amare, papaw juice, and cashew shell extract all involve products that, once purified, are more specifically classified elsewhere in the HTSUS, and that these exemplars thus direct classification of extracts only in headings that are more specific, and not less specific, than heading 1302. However, there is no indication in the EN that excluded substances must necessarily be classified in more specific headings. To the contrary, the EN states that purified papaw juice and cashew shell extracts are outright excluded from heading 1302, indicating that they are not prima facie classifiable there irrespective of whether they are described by a more specific heading. Moreover, the EN counsels exclusion of ginseng extract from the heading and directs its classification in heading 2106, HTSUS, which is less specific than heading 1302. R.T. Foods, Inc. v. United States, 757 F.3d 1349, 1354 (Fed. Cir. 2014) (“HTSUS 2106…is a ‘basket provision’ as indicated by the terms ‘not elsewhere specified or included’…A basket provision is not a specific provision.”). Finally, read in its entirety, EN 13.02 contains myriad indicators that the purification of extracts renders them outside the scope of heading 1302, HTSUS, as discussed above.
Finally, AHPA contends that the position taken in this decision is inconsistent with HQ H121546, dated February 19, 2015, and HQ 963848, dated April 17, 2002, in which, respectively, a pine bark extract and a pyrethrum extract were classified in heading 1302, HTSUS. However, both these rulings involved products that had undergone multiple extractions by means of solid-liquid extraction techniques, but had not been subjected to more advanced purification steps like chromatographic purification. In fact, in HQ H121546, CBP specifically found that “the solvent extraction method used is…less complex than…reverse osmosis or column chromatography, which CBP has determined target specific compounds to a degree not contemplated by the ENs to heading 1302, HTSUS.” As such, the products in HQ H121546 and HQ 963848 are distinguishable from the instant bilberry and blueberry powders, all of which have been purified by means of chromatographic purification. AHPA further contends that other CBP rulings, including HQ H238484, dated October 21, 2015, and HQ H237599, dated May 27, 2015, HQ H061203, supra, and HQ 966448, supra, are “based on erroneous assumptions and faulty logic, and should be revoked.” Notwithstanding the fact that those rulings comport with our above-stated position, which is itself consistent with numerous authorities and EN 13.02, those rulings are not at issue in the present action. Comments suggesting their revocation are therefore inapposite.
Consequently, we remain of the position that the instant bilberry and blueberry powders are excluded from heading 1302, HTSUS. We accordingly consider whether these powders can be classified in heading 2907, HTSUS, as phenols. General Note 1 to Chapter 29 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;
Mixtures of two or more isomers of the same organic compound (whether or not containing impurities), except mixtures of acyclic hydrocarbon isomers (other than stereoisomers), whether or not saturated (chapter 27)...
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.
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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…
Per Note 1(a) and the EN to Chapter 29, a substance is classifiable within Chapter 29 where it is comprised almost entirely by a single molecular structure, so long as any structurally-deviant constituents satisfy the definition of “impurities” as set forth in the EN to Chapter 29. See Degussa Corp. v. United States, 508 F.3d 1044, 1047-48 (Fed. Cir. 2007) (discussing the scope of, and applying, identical language concerning chemical impurities in the EN to Chapter 28); Rhodia, Inc. v. United States, 441 F. Supp. 2d 1368, 1375 n.3 (Ct. Int'l Trade 2006) (“The term ‘chemical compound’ is generally used to refer to ‘a substance composed chemically of two or more elements in definite proportions (as opposed to mixture).’”). Pursuant to Note 1(b) to Chapter 29, headings of the chapter also cover mixtures of isomers of organic compounds, i.e., of organic compounds that are represented by a single chemical formula in diverse structural arrangements, that also may or may not contain such “impurities.” Among other things, “impurities” in a separately defined chemical compound or mixture of isomers cannot have been “deliberately left in the product with a view to rendering it particularly suitable for specific use rather than for general use.” See EN to Chapter 29; HQ 965089, dated January 31, 2002 (“Toluene…is deliberately left in the product with a view to rendering it particularly suitable for the specific use of manufacturing dextro-propoxyphene rather than for general use…Hence, the toluene is an impermissible impurity for tariff classification purposes.”).
Here, according to the product descriptions, the instant bilberry and blueberry powders all contain 20 percent to 25 percent anthocyanosides, and the products in NY N037866 and NY N219927 contain 40 percent total polyphenols and 70 percent total phenols respectively. Anthocyanosides, polyphenols, and phenols are all classes of compounds, rather than separate chemically defined compounds or isomers thereof. Thus, it is unclear whether any of the instant products consists of a single separately chemically defined compound, a mixture of its isomers, or simply a mixture of diverse compounds that falls outside the scopes of Note 1(a) and Note 1(b) to Chapter 29. Moreover, the bilberry powders in HQ 964139 and NY N219927 are described as “standardized,” indicating that they may have been supplemented with inert ingredients so as to achieve a standard concentration suitable for ingestion as a medicinal supplement, in which case the additional material could not be considered “impurities” for purposes of Note 1 to Chapter 29. See, e.g., U.S. Patent No. 6,649,195 (issued Nov. 18, 2003) and U.S. Patent No. 6,203,756 (issued Aug. 15, 2000) (both describing benefits of bilberry extracts standardized to 25% anthocyanosides in promoting healthy eyesight). In view of this, it cannot be said that the instant products satisfy Note 1 to Chapter 29, and they consequently fall outside the scope of heading 2907, HTSUS.
We lastly consider whether the instant products are classified in heading 3824, HTSUS. Heading 3824 provides for, among other things, “chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included.” General Note 1 to Chapter 38 provides, in relevant part, that “[t]his Chapter…does not cover chemically defined elements or compounds (usually classified in Chapter 28 or 29…” 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.
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 have been purified following extraction, and thus fall outside the scope of heading 1302, but yet do not qualify as a product of a Chapter 29 heading. See HQ H195716, dated February 19, 2015; HQ H061203, supra; and HQ 959099, dated May 1, 1998. The subject powders, as chemical products that have been subjected to chromatographic purification, but cannot be classified in heading 2907, HTSUS, or in any other headings of Chapter 29, are properly classified in heading 3824, HTSUS.
HOLDING:
By application of GRI 1, the bilberry and blueberry extracts are classified under heading 3824, HTSUS, specifically under subheading 3824.90.9290, HTSUSA (Annotated), 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.” 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/.
EFFECT ON OTHER RULINGS:
HQ 964139, dated April 19, 2002, NY N219927, dated June 27, 2012, and NY N037866, dated October 3, 2008, are hereby REVOKED in accordance with the above analysis. HQ 967972, dated March 2, 2006, and NY 814027, dated February 2, 1996, are hereby MODIFIED as set forth above in regard to the classification of the bilberry extract powder, but not to the other products at issue in HQ 967972 and NY 814027.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division
CC: Dennis Awana
Inter-Orient Services
1455 Monterey Pass Road, Suite 205
Monterey Park, CA 91754
Jonathan Selzer
HerbaSway Laboratories
101 North Plains Industrial Road
Wallingford, CT 06492
Brian S. Goldstein, Esq. .
Tompkins & Davidson
One Astor Plaza
1515 Broadway, 43rd Floor
New York, NY 10036-8901