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HQ 964607




July 8, 2002

CLA-2 RR:CR:GC 964607ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 3823.19.4000

Port Director
U.S. Customs Service
1624 E. 7th Avenue.
Suite 101
Tampa, FL 33605

RE: Protest 1801-00-100162, Saw Palmetto Extract.

Dear Port Director:

The following is our decision on Protest 1801-00-100162, against your classification of a product described as saw palmetto extract under the Harmonized Tariff Schedule of the United States, HTSUS.

FACTS:

The goods under protest are described by protestant as being the extract of saw palmetto berries. The entries under protest (032-025xxxx-3, 032-024xxx-8, and 032-025xxxx-8) were made between December 1998 and April 1999, and classification was claimed to be subheading 1211.90.8090, HTSUS, which provides for plants and parts of plants (including seeds and fruits), of a kind used primarily in perfumery, in pharmacy or for insecticidal, fungicidal or similar purposes, fresh or dried, whether or not cut, crushed or powdered; substances having anesthetic, prophylactic or therapeutic properties and principally used as medicaments or as ingredients in medicaments: other.

Samples of the merchandise were analyzed by Customs Laboratories (Lab. No. 4-1999-50328-001, report date 07/02/1999). The report states that "The sample consists of a light brown colored liquid in a round glass container. The sample contains a mixture of fatty acids. Saw palmetto is a plant and available information suggested that saw palmetto extract is used in the treatment of prostatic hyperplasia." A second Customs Laboratory report (Lab. No. 2-2000-20684, report date 06/21/2000) provides the composition of the product as: "Total free fatty acid 87.8%, predominant acids: Oleic Acid 37.8%, Lauric Acid 22.8%, Myristic Acid 11.2%, Palmitic Acid 9.7%."

The entries were liquidated on September 29, 2000, under subheading 3823.19.4000, HTSUS, which provides for industrial monocarboxylic fatty acids; acid oils from refining; other; other. A timely protest was filed on December 14, 2000, in which protestant claims that the goods should be classified in heading 1511, HTSUS, which provides for palm oil and its fractions.

ISSUE:

What is the classification of saw palmetto extract?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied in order.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The 1998/1999 HTSUS provisions under consideration are as follows:

1211 Plants and parts of plants (including seeds and fruits), of a kind used primarily in perfumery, in pharmacy or for insecticidal, fungicidal or similar purposes, fresh or dried, whether or not cut, crushed or powdered:

1211.90 Other:

1211.90.80 Other
Substances having anesthetic, prophylactic or therapeutic properties and principally used as medicaments or as ingredients in medicaments:

1211.90.8090 Other

1511 Palm oil and its fractions, whether or not refined, but not chemically modified:

1511.10.0000 Crude oil

1511.90.0000 Other

3823 Industrial monocarboxylic fatty acids; acid oils from refining; industrial fatty alcohols: Industrial monocarboxylic fatty acids; acid oils from refining:

3823.19 Other:

3823.19.2000 Derived from coconut, palm-kernel or palm oil

3823.19.4000 Other

Heading 1211, HTSUS, provides for plants and parts of plants (including seeds and fruit) that may be cut, crushed, or powdered. Because the merchandise under protest is liquid extract, it is not described by the terms of the heading and was properly excluded from classification therein.

Protestant contends that the merchandise is an oil product of Chapter 15, classifiable in heading 1511 HTSUS, which provides for palm oil and its fractions, whether or not refined, but not chemically modified.

Protestant states that the extract is produced through a process that begins with dried saw palmetto fruit, which is ground and put into a high-pressure vessel. At high pressure, carbon dioxide is introduced which acts as a solvent and dissolves the extractable material out of the ground solid. Pressure is then reduced, the dissolved components are then precipitated and locked out from the separator. This process is repeated several times until no extractable components are left in the solid.

The ENs to heading 1511 state, in relevant part:

"Palm oil is a vegetable fat obtained from the pulp of the fruits of oil palms. The main source is the African oil palm (Elaeis guineensis) which is native to tropical Africa but is also grown in Central America, Malaysia and Indonesia; other examples are Elaeis melanococca (also known as noli palm) and various species of Acrocomia palms, including the Paraguayan palm (coco mbocaya), originating in South America. The oils are obtained by extraction or pressing and may be of various colours depending on their condition and whether they have been refined. They are distinguishable from palm kernel oils (heading 15.13), which are obtained from the same oil palms by having a very high palmitic and oleic acid content."

The merchandise at issue has been produced from the fruit of the saw palmetto (serenoa repens), which is an entirely different type of plant from the oil palms referenced in the EN. According to the U.S. Dispensatory, 25th ed., Saw Palmetto is a fan palm flourishing on the Atlantic coast from South Carolina to Jupiter Inlet, Florida. The composition of oil from the saw palmetto is completely different from palm or palm kernel oil. Therefore, the product is not classifiable in heading 1511.

The General Notes to Chapter 15 provide that the chapter covers animal or vegetable fats and oils, whether crude, purified or refined or treated in certain ways. The ENs define those animal fats and oils as being esters of glycerol with fatty acids (such as palmitic, stearic and oleic acids). The glycerol esters are known as triglycerides.

The booklet, Food Fats and Oils, 6th ed., (The Institute of Shortening and Edible Oils, Inc., Washington, D.C. 1988) describes triglycerides on page 1, as follows: "A triglyceride is composed of glycerol and three fatty acids. All of the fatty acids in a triglyceride are identical, it is termed a 'simple' triglyceride. The more common forms, however, are '"mixed' triglycerides in which two or three kinds of fatty acid moieties are present in the molecule." Fats and oils are described on page 3 of the same booklet as: "Fats and oils are predominately triesters of fatty acids and glycerol, commonly called 'triglycerides.' Triglycerides normally represent over 95 percent of the weight of most food fats and oils. The minor components include mono- and diglycerides, free fatty acids, phosphatides, sterols, fatty alcohols, fat soluble vitamins and other substances." (emphasis added). As noted above, the laboratory analysis of the saw palmetto extract indicates that its contains over 87% fatty acids.

HQ 963214, dated May 25, 1999, concerned the classification of crude oil extracted from fermented fungal biomass by a hexane solvent. The ruling states: "The oil consists of triglycerides of several fatty acids. In a triglyceride, three fatty acids moieties are ester linked to one glycerol." The product was classified in subheading 1515.90.40, HTSUS, which provides for other fixed vegetable fats and oils.

In HQ 961401, dated July 13, 1998, a dietary supplement, Neuromins, derived from algae, was classified as a vegetable oil of Chapter 15. The ruling stated: "Neuromins is the proprietary name for a dietary supplement made from triglyceride oil derived from a species of algae. A triglyceride is an ester of glycerol in which all three hydroxyl groups are exterified with a fatty acid."

Hawley's Condensed Chemical Dictionary, 12th ed., 1993, on page 507, defines a fatty acid as "A carboxylic acid derived from or contained in an animal or vegetable fat or oil. All fatty acids are composed of a chain of alkyl groups containing from 4 to 22 carbon atoms (usually even numbered) and characterized by a terminal carboxyl group –COOH."

Protestant's product consists of free fatty acids which have been separated from their glycerol molecule by the action of high pressure carbon dioxide. The resulting product is no longer a fat or oil, since it no longer has the chemical structure of a triglyceride. The ENs to Chapter 15, in pertinent part, state: "Headings 15.07 to 15.15 of this Chapter cover the single (i.e., not mixed with fats or oils of another nature), fixed vegetable fats and oils mentioned in the headings, together with their fractions, whether or not refined, but not chemically modified." (emphasis added) Clearly, distilling, or breaking up a palm oil into glycerol and fatty acids, and then separating the fatty acids, has chemically modified the oil.

The ENs also indicate that included in the products classified in Chapter 15 are "fractions" of vegetable fats and oils. "Headings 15.04 and 15.06 to 15.15 also cover fractions of the fats and oils mentioned in those headings, provided they are not more specifically described elsewhere in the Nomenclature (e.g., spermaceti, heading 15.21). The main methods used for fractionation are as follows : (a) dry fractionation which includes pressing, decantation, winterisation and filtration; (b) solvent fractionation; and
(c) fractionation with the assistance of a surface-active agent."

Fractionated oils are obtained from the whole oil by processes such as chilling, pressing and solvent extraction. These processes separate the whole oil into two or more fractions. Each fraction is composed of the components in the original oil, but in selected proportions. As noted in the ENs: "Fractionation does not cause any changes in the chemical structure of the fats or oils." Products which have undergone fractionation are essentially no more than concentrations of different glycerides that are themselves animal or vegetable fats or oils, as defined in the ENs.

The protestant's product is not a fraction of an animal or vegetable oil for the same reason it is not an oil. Protestant has misunderstood "not chemically modified." The term refers to chemical modification of the oil, not how a modification is caused. In the instant situation, protestant's product is produced from saw palmetto, but it has been chemically modified and does not have the chemical structure of an oil triglyceride and is not eligible for classification in Chapter 15.

Protestant's merchandise, saw palmetto extract, a mixture of fatty acids, is properly classified in subheading 3823.19.4000, HTSUS, which provides for industrial monocarboxycilic fatty acids.

HOLDING:

Saw Palmetto Extract is classified in subheading 3823.19.4000, HTSUS, which provides for:. Industrial monocarboxylic fatty acids; acid oils from refining; industrial fatty alcohols: industrial monocarboxylic fatty acids; acid oils from refining: other: other.

The protest should be DENIED. 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,

Myles B. Harmon, Acting Director

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