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

HQ H262217 August 24, 2016 CLA–2 OT:RR:CTF:TCM H262217 NCD CATEGORY: Classification TARIFF NO.: 3824.90.9290 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). *** 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.” *** 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). *** (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). *** 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 socalled “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,