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HQ 964139





April 19, 2002

CLA-2 RR:CR:GC 964139AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 1302.19.40

Port Director
U.S. Customs Service
9901 Pacific Highway
Blaine, WA 98230

RE: Protest 3004-00-100090; Bilberry dry hydroal extract

Dear Port Director:

This is our decision on Protest 3004-00-100090, timely filed by a customs broker on behalf of Baralex, Inc., on May 12, 2000, against your decision in the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of Bilberry dry hydroal extract powder 25% anthocyanide content.

FACTS:

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.

New York Ruling Letter (NY) 814027, dated February 2, 1996, classified standardized Bilberry extract imported in bulk-powder form in subheading 1302.19.40, HTSUS, the provision for "Vegetable saps and extracts: Other: Ginseng; substances having anesthetic, prophylactic or therapeutic properties: Other: Other." NY 814027 was based on a flow chart from the manufacturer outlining the solvent extraction process used for each product and Customs Laboratory Report 2-1996-20178, dated November 11, 1995, which states in pertinent part, the following:

Bilberry, a mixture of organic compounds containing 25% anthocyanosides further processed into a food supplement; Bilberry extract is also natural coloring matter. Anthocyanidins are components which possess coloring properties and are aromatic heterocyclic chemicals. The anthocyanosides are glycosides of the anthocyanidins.

Protestant entered the merchandise on various dates in 1999, under subheading 1302.19.40, HTSUS, the provision for “[V]egetable saps and extracts; pectic substances, pectinates and pectates; agar-agar and other mucilages and thickeners, whether or not modified, derived from vegetable products: [O]ther: [G]inseng; substances having anesthetic, prophylactic or therapeutic properties: [O]ther: [O]ther.” The twelve entries that compose the subject of this protest were all liquidated on March 3, 2000, under subheading 3824.90.28, HTSUS, the provision for “[P]repared 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: [O]ther: [O]ther.” The protest was timely filed on May 12, 2000.

ISSUE:

What is the classification of Bilberry dry hydroal extract powder 25% anthocyanide content?

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. 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:

Food preparations not elsewhere specified or included:

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:

Protestant cites NY 814027 for the proposition that Bilberry dry hydroal extract powder 25% anthocyanide content is classified in heading 1302, HTSUS. After reviewing the file in that case, it appears that the product specified therein is also Bilberry dry hydroal extract powder 25% anthocyanide content extracted using the same processes in all material aspects as does the manufacturer of the instant merchandise. Hence, NY 814027 is dispositive of this issue. However, NY 814027 is being reviewed.

HOLDING:

Bilberry dry hydroal extract powder 25% anthocyanide content is classified in subheading 1302.19.40, HTSUS, the provision 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: Other. The protest should be ALLOWED.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs 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 of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John A. Durant, Director
Commercial Rulings Division

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