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HQ 958870




August 8, 1996

CLA-2 RR:TC:FC 958870K

CATEGORY: CLASSIFICATION

TARIFF NO.: 1302.19.4040

Port Director
U.S. Customs Service
300 S. Ferry Street
Terminal Island, California 90731

RE: Application For Further Review of Protest No.2720-95-101409; Ginkgo Biloba Powder and
Hawthorn Berries

Dear Port Director:

The following is our response to the referral by your office, dated February 5, 1996, of the request for further review of the above-referenced protest.

FACTS:

The consumption entry covering the imported merchandise was liquidated on October 20, 1995, under the provision for other vegetable saps and extracts, substances having anesthetic, prophylactic or therapeutic properties, in subheading 1302.19.4040, Harmonized Tariff Schedule of the Unites States (HTSUS) (1995), with duty at the general rate of 1.4 percent ad valorem. A timely protest under 19 U.S.C. 1514 was received on December 18, 1995. The protestant requested reliquidation of the entry under the provision for other vegetable saps and extracts (not having anesthetic, prophylactic or therapeutic properties), in subheading 1302.19.9040, HTSUS, with a free rate of duty. A further submission was submitted dated July 22, 1996.

The merchandise consists of extracts of Hawthorne Berries and Ginkgo Biloba leaves.
.
ISSUE:

The issue is whether the extracts have therapeutic properties.

LAW AND ANALYSIS:

The protestant opines that at the time of importation of the extracts of Ginkgo Biloba leaves and Hawthorne Berries, the protestant, as the importer, does not make any therapeutic claims. Claims may be made at the retail level but not at the time of importation and there is no U.S. Government documentation to substantiate the technical information obtained by Customs which indicates that the extracts have therapeutic properties. Accordingly, the protestant concludes that the extracts should be classified in subheading 1302.19.9040, HTSUS, as other vegetable extracts (not having therapeutic properties).

The Merck Index, An Encyclopedia of Chemicals, Drugs, And Biologicals (1989), at page 402, lists a therapeutic category for Hawthorn Berries, flowers, and leaves as "Cardiotonic, coronary vasodilator" and at page 693, it lists a therapeutic category for Ginkgo Biloba Extracts as "In cerebral and peripheral circulatory disturbances". It is immaterial whether such claims are made or not made by the importer or others. Subheading 1302.19.4040, HTSUS, provides for other vegetable saps and extracts, substances having therapeutic properties, and there is sufficient technical information stating that such extracts have therapeutic properties.

HOLDING:

Vegetable extracts of Ginkgo Biloba leaves and of Hawthorne Berries are classified in subheading 1302.19.4040, HTSUS, as other vegetable extracts, substances having therapeutic properties, with a 1995 general rate of duty of 1.4 percent ad valorem.

You are directed to deny the protest in full.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision and any reliquidations of entries in accordance with this decision must be accomplished prior thereto. Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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