# HQ W967653

# Juluy 31, 2008

# 

# CLA-2 OT:RR:CTF:TCM W967653 ARM

CATEGORY: Classification

TARIFF NO.: 1302.19.90

Port Director

U.S. Customs and Border Protection

Building \# 77

Jamaica, N.Y. 11430

Re: Protest and Application for Further Review No: 4701-04-100475;
Pycnogenol® Maritime Pine Bark Extract

Dear Port Director:

The following is our decision regarding Protest 4701-04-100475, timely
filed on June 10, 2004, regarding classification of Pycnogenol® Maritime
Pine Bark Extract, under the Harmonized Tariff Schedule of the United
States (HTSUS). The protest describes seven entries from January 11
through December 15, 2003, under subheading 1302.19.90, HTSUS, which
provides for vegetable extracts. CBP liquidated entries on March 12,
March 26, and May 7, 2004, in subheading 2106.90.99, HTSUS, as a food
preparation. Protestant claims classification in subheading 1302.19.90,
HTSUS, as a vegetable extract. CBP has revised its position, claiming
classification in subheading 3824.90.28, HTSUS, as a chemical
preparation. We have considered the points protestant raised in a
telephone conference on October 15, 2007, and those in the December 1,
2006 and November 8, 2007, supplemental submissions.

**FACTS:**

Pycnogenol® is a reddish brown powder extracted with ethanol from French
maritime pine bark. It is imported as a bulk powder. Pine bark is high
in procyanidin content. It is used in the dietary supplement and
cosmetics industries. Protestant claims that the instant merchandise,
Pycnogenol®, is standardized to contain 60-75% procyanidins.
Procyanidins are a mixture of proanthocyanidin compounds in different
degrees of polymerization. Some of the procyanidins are catechins with a
chemical formula of, dimers (two degrees), trimers (three degrees), etc"
([The Merck Index]{.underline}, 11^th^ ed.). While concentrating the
procyanidins in the pine bark, the extraction process used here leaves
intact a variety of naturally occurring phenolic and polyphenolic
compounds and their derivatives with glucose and other sugars, as well
as trace metals such as calcium, sodium, potassium, iron, manganese,
zinc, copper and selenium from the original pine bark.

CBP Laboratory Report #NY20061764, dated March 13, 2007, states in
pertinent part, the following:

> The sample, a reddish brown powder packaged in six sealed white
> plastic bottles labeled "Pycnogenol", "French Maritime Pine Bark
> Extract" each containing 20 grams, contains approximately 41.6% by
> weight procyanidins, 5.4% by weight fructose, 3.7% by weight glucose
> and other pycnogenol components.
>
> The sample does not meet USP Monograph requirements.
>
> According to the literature, other pycnogenol components include
> phenolic acids, the glucose ester of ferulic acid and P-Cumaric acid,
> free glucose and other sugars, and vanillin.
>
> Information provided by the importer indicates that fractionated
> ultrafiltration purification is used in the production process.

**ISSUE:**

Is Pycnogenol® classified as vegetable extracts of heading 1302, HTSUS?

**LAW AND ANALYSIS:**

Initially, we note that the matter protested is protestable under 19
U.S.C. §1514(a) (2) as a decision on classification. The protest was
timely filed, within 90 days of liquidation of the first entry for
entries made before December 18, 2004, and within 180 days of
liquidation of the first entry for entries made on or after December 18,
2004.  (Miscellaneous Trade and Technical Corrections Act of 2004,
Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19
U.S.C. § 1514(c) (3) (2006)).

Further Review of Protest No. 4701-04-100475 was properly accorded to
Protestant pursuant to 19 C.F.R. § 174.24 because the decision against
which the protest was filed involves specific factual and legal
questions that have not been the subject of a Headquarters ruling or
court decision. Specifically, whether bulk powdered pycnogenol
containing approximately 41% procyanidins, is classified in heading
1302, HTSUS.

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:

> Vegetable saps and extracts:

19. Other

1302.19.90 Other . . . .

\* \* \* \* \* \* \* \* \* \* \* \*

2106 Food preparations not elsewhere specified or included:

2106.90 Other:

> Other:
>
> Other:
>
> Other:
>
> Other:

99. 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; residual products of the chemical or allied industries, not
elsewhere specified or included (con.):

90. Other:

> Other:
>
> Mixtures containing 5 percent or more by weight of one or more
> aromatic or modified aromatic substances:

3824.90.28 Other

\* \* \* \* \* \* \* \* \* \* \* \*

> Other

3824.90.91 Other . . . .

EN 13.02 states, in pertinent part, the following:

> **(A) Vegetable saps and extracts.**
>
> 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).

As an initial matter protestant contests the timeliness of two of the
liquidations. Protestant states that entry number 408-xxxx651-6 and
408-xxxx128-6 were liquidated by CBP more than one year after their
respective dates of entry, in the absence of any notice of extensions
being given to the importer of record. Therefore, protestant claims, the
entries had been deemed liquidated by operation of 19.U.S.C 1504(a),
under subheading 1302.19.90, HTUS, as entered.

However, a verification of our computerized tracking system, ACS,
indicates that on November 8, 2003, notices of extension were sent to
both the importer of record and the surety in compliance with Title 19
of the Code of Federal Regulations part 159.12 (19 CFR 159.12). The ACS
record is sufficient to create the presumption that proper notice of
extension was given. See [International Cargo & Surety Insurance Co.
(Data Memory Corp.) v. United States]{.underline}, 779 F.Supp. 174
(1991). The protestant has not attempted to rebut the presumption that
proper notices of extension were sent by CBP. Protestant's assertion
that the notices of extension were not sent to the importer is
insufficient to rebut the presumption in favor of CBP.

The relevant portion of headings 2106 and 3824, HTSUS, referring to food
supplements and chemical products and preparations, respectively, can
only be used to classify a mixture of natural products as such if the
product is not provided for in another heading of the HTSUS. Therefore,
if we find that the merchandise is described by the terms of heading
1302, HTSUS, then headings 2106 and 3824, HTSUS, can not be considered.

Heading 1302, HTSUS, describes vegetable extracts. The EN's provide that
vegetable products are usually obtained by natural exudation or by
incision, or extracted by solvents. Our research provides that
traditional extracts are obtained by decoction, percolation, maceration,
digestion, or infusion. See [United States Pharmacopeia]{.underline}
(USP), (21^st^ rev., p.1334), and [Remington\'s Pharmaceutical
Sciences]{.underline}, (18^th^ ed., p. 1543). However processed, the
extracts described by the ENs and the USP appear to be complex
substances containing a large portion of the plant profile such that
they are identifiable as an extract of a particular vegetable. Hence,
substances obtained from a plant are not considered "vegetable extracts"
of heading 1302, if they only contain one ingredient divorced from the
composition of the vegetable source.

In Headquarters ruling (HQ) 967972, dated March 2, 2006, we stated the
following:

> However, there appears to be a limit on the degree and extent of
> purification that can occur for the product to remain in heading 1302.
> For instance, EN 13.02, explicitly excludes certain refined extracts
> of opium, quassia amare, papaw juice, and cashew nut shell liquid,
> once the refining process concentrates a certain group of chemical
> compounds to a particular point. Hence, poppy straw concentrates
> containing more than 50% alkaloids are excluded from heading 1302.
> Likewise, quassin, a chemical compound extracted and refined from the
> quassia amara shrub is classified in Chapter 29. Papain enzyme, once
> purified from the extraction process of papaw juice, is classified as
> an enzyme of Chapter 37. And polymers extracted and refined from
> cashew nut shell liquid are classified in Chapter 39 as polymers.

\"It is a well-established principle that classification of an imported
article must rest upon its condition as imported.\" [E. T. Horn Company
v. United States]{.underline}, Slip Op. 2003-20, (CIT, 2003), (citing
[Carrington Co. v. United States]{.underline}, 61 CCPA 77, 497 F.2d 902,
905 (CCPA 1974), [United States v. Baker Perkins]{.underline}, Inc., 46
CCPA 128, (1959)). The instant merchandise consists of 41% procyanidins
according to the CBP laboratory report. Generally, Customs laboratory
findings concerning technical analysis of merchandise are binding on
Customs. See, Customs Directive 009-3820-002 (May 4, 1992) Guidelines
for Customs Employees Regarding Laboratory Reports, which states, in
part, that: "The laboratory report, once it has been issued, becomes an
official document of the U.S. Customs Service and cannot be disregarded
for any reason."

Protestant explains that this test result may differ with the 60-75%
procyanidin claim of the importer if the container is not completely
sealed and the product is exposed to moisture. However, we are directed
to use the Customs laboratory report finding of a 41% procyanidin
content for classification purposes. Thus, the laboratory report
confirms that a considerable amount of plant substances other than
procyanidins are present in the merchandise as imported and the
procyanidins are only concentrated to a level of 41% according to the
Customs Laboratory report. The Explanatory Notes specified above appear
to indicate that the level of purity of the extract is a determining
factor for inclusion in heading 1302, and not solely the method of
extraction. For the product under consideration, the extraction
technique is solvent based, and the product is not specified in other
tariff provisions. Hence, the merchandise is not similar to those
products specifically excluded from the heading by EN 13.02 and it meets
the terms of the heading as a vegetable extract.

Moreover, the instant product differs substantially from the products
described in HQ 966566, dated October 21, 2003, and in HQ 968428, dated
December 19, 2006. The subject merchandise in the former ruling was
alleged to contain a much higher 90% proanthocyanidins content. The
subject merchandise in the latter ruling was alleged to contain between
76 to 87% proanthocyanidin content and was subjected to a further
refining process. Without more evidence that the merchandise in the
above rulings is substantially similar to that of the instant protest,
we decline to follow the classification analysis of those rulings.

We find that the classification of Pycnogenol® Maritime Pine Bark
Extract is heading 1302, HTSUS, which provides for: "Vegetable saps and
extracts . . . ." While Protestant advanced arguments for alternative
heading 2106, HTSUS, in its Application for Further Review, we have
found that the classification under which the merchandise was entered is
correct and need not discuss the alternative heading here. Furthermore,
heading 3824, the provision for chemical products not elsewhere
specified or included, can not be applied to vegetable extracts of
heading 1302.

**HOLDING:**

By application of GRI 1, Pycnogenol® Maritime Pine Bark Extract is
classified in heading 1302, HTSUS, specifically in subheading
1302.19.90, 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." You are
instructed to ALLOW the protest in full.

In accordance with Sections IV and VI of the CBP [Protest/Petition
Processing Handbook]{.underline} (HB 3500-08A, December 2007, pp. 24 and
26), you are to mail this decision, together with the CBP 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 International
Trade, Regulations and Rulings, will make the decision available to CBP
personnel, and to the public on the CBP Home Page on the World Wide Web
at [www.CBP.gov](http://www.CBP.gov/), by means of the Freedom of
Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

Commercial and Trade Facilitation Division

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