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HQ 085828


November 27, 1989

CLA-2 CO:R:C:G 085828 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 0709.90.4080

Mr. Robert J. Ward, Jr.
Attorney at Law
Givens and Kelly
950 Echo Lane
Houston, Texas 77024

RE: Tariff classification of coriander

Dear Mr. Ward:

This is in response to your letter of October 13, 1989, concerning the tariff classification of fresh coriander under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise under consideration is fresh coriander, the leafy portion of the coriander plant (Coriandrum sativum), an annual umbelliferous plant of the parsley family which is primarily grown for its seed. The leaf is an herb used primarily as a flavoring or garnish in cooking.

ISSUE:

Whether fresh coriander is properly classifiable as a vegetable in subheading 0709.90.4080, HTSUS, or as other spices, under heading 0909, HTSUS.

LAW AND ANALYSIS:

The merchandise under consideration is a fresh herb, coriander, and is used as a flavoring or garnish in cooking. The inquirer claims that the merchandise is properly classifiable as "other spices" in heading 0910, HTSUS, rather than as other vegetable, in heading 0709, HTSUS. The inquirer points out that coriander, whether in seed or leaf form, was classifiable under item 161.25, TSUS, at a free rate of duty, and that the merchandise should be classified under subheading 0910.99.60,

HTSUS, if classification under subheading 0909.20.00 is not found to be correct, in order to more closely maintain the goal of duty neutrality between the TSUS and the HTSUS than would be achieved by classification under subheading 0709.90.4080. The inquirer notes that fresh coriander is not a food or substance for nourishment, as are vegetables, and should not be classified therewith. The inquirer references several sources regarding the use of fresh coriander as a garnish or flavoring and states that fresh coriander is used in the same manner as a spice and should be classified under the provision of the HTSUS dealing with spices, as was the case under the TSUS, rather than as a vegetable. The inquirer notes that under the Summary of Trade and Tariff Information, which dealt with the TSUS, issued in September, 1984, by the International Trade Commission (USITC publication 841), the term spices covered aromatic vegetable substances (including seeds, leaves, stems, or other pertinent plant parts) from which, ordinarily, no part of the volatile oil or other flavoring principle has been removed. Further, the inquirer points out that the U.S. International Trade Commission, in several publications dealing with the United States transfer from the TSUS to the HTSUS, e.g. USITC publication 2051 of January, 1988, indicated that the cross- reference for item 161.25, TSUS, was subheading 0909.20.00, HTSUS. In addition, the inquirer states that the Customs Service should not rely on the Explanatory Notes to the Harmonized System which it characterizes as "unauthorized materials".

Classification under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification is determined first in accordance with the terms of the heading and any relative Section or Chapter notes. In this regard, it is noted, in accordance with legal note 2 to Chapter 7, HTSUS, heading 0709, the word "vegetables" includes several different vegetables, e.g. onions, garlic, used for flavoring or seasoning. These vegetables are not considered spices because of such use. Thus, while coriander leaves provide flavoring for foods, they are not, ipso facto, spices classifiable under heading 0910, HTSUS, as suggested by the inquirer. In this regard, we have been unable to find any source, including those referenced by the inquirer, that consider coriander leaves vis-a-vis coriander seeds to be a spice.

Although item 161.25, TSUS, used the term coriander in its generic sense, referring to all parts of the plant, and Heading 1 to Subpart B of Part 11, Schedule 1. TSUS, clearly showing that the term, under that tariff system, included the leaves, flowers, barks, roots, seeds, or other parts of the plant, Chapter 9 of the HTSUS does not so group the parts of the plant.

By reference to the Explanatory Notes to clarify any ambiguity on the matter, one can note that coriander, other than the seed, is excluded from Chapter 9, HTSUS, and that it is considered a vegetable under Chapter 7, HTSUS. Although the Explanatory Notes do not have a statutory basis and are not part of the legal system, they do represent the considered views of the classification experts from the various members countries of the Customs Cooperation Council, including the United States. Such notes are similar to legislative history as well as being expert technical advice.

The aforementioned cross-reference between the TSUS and the HTSUS issued by the International Trade Commission cross- references item 161.25, TSUS, and subheading 0909.20.0000, HTSUS, and states that the HTSUS classification is only a likely classification. The user is strongly cautioned against relying on the cross-reference in order to determine legally appropriate tariff classification under the HTS. The publication also notes that the cross-reference was not intended as a substitute for the traditional tariff classification process, a determination made by the U.S. Customs Service.

In conclusion, fresh coriander and coriander seeds, are separately classifiable under the HTSUS. The former being classifiable under heading 0709, HTSUS, and the latter being classifiable under heading 0909, HTSUS.

HOLDING:

Fresh coriander is properly classifiable in subheading 0709.90.4080, HTSUS, dutiable at a rate of 25 per cent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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