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

Tariff Classification

Appeals Division