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HQ 088209


March 18, 1991

CLA-2 CO:R:C:F 088209 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 0713.31.10

Mr. Kent Wang
Houston Calco Inc.
2400 Dallas Street
Houston, Texas 77003

RE: Request for Reconsideration of New York Ruling 854234 of July 23, 1990, concerning the tariff classification of dried mung beans.

Dear Mr. Wang:

This letter is in response to your request for a reconsideration of New York Ruling (NYRL) 854234, dated July 23, 1990, regarding the tariff classification of dried mung beans from Australia and Thailand which was issued to your Customs broker on your behalf.

FACTS:

In NYRL 854234, dried mung beans, used in the production of bean sprouts, were classified in subheading 0713.31.1000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for dried beans of the species Vigna radiata, seeds of a kind used for sowing. In NYRL 856757, dated October 17, 1990, dried mung beans (Vigna radiata), from Australia, were similarly classified. A phytosanitary certificate, unrelated to any particular Customs entry, which you submitted, covers a shipment of mung beans. The botanical name Vigna radiata with a commodity code listed as 0713.31 is noted therein.

According to information submitted, you hydroponically grow the beans in question, i.e., by means of the application of light, water and nutrients. You indicate that other importers of the same type of merchandise are entering their mung beans under
subheading 0713.31.2000 or subheading 0713.31.4000 HTSUSA. Your Customs broker has previously indicated that is the way you entered your shipments of mung beans prior to issuance of NYRL 854234. You indicate that mung beans that are grown hydroponically should not be classified under subheading 0713.31.10, HTSUSA, which provides for seeds of a kind used for sowing.

ISSUE:

What is the proper tariff classification for dried mung beans?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated 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 together with any relevant section and chapter notes.

As noted above, you believe that mung beans that are grown hydroponically should not be classified under subheading 0713.31.10, HTSUSA. You note that the beans are not sown.

We have considered heading 0713.31, HTSUSA, and its various subheadings as well as the relative explanatory notes. We note that they do not provide that the articles to be classified thereunder are to be classified on the basis of principal or actual use. There, in fact, is no requirement that the seeds themselves have to be capable of germinating. As we noted in Headquarters Ruling (HRL) 086216 of March 27, 1990, concerning another dried leguminous vegetable, "Seeds of a kind used for sowing" (emphasis added) does not demand that the seeds themselves be actually used to reproduce, or be placed in the ground. The subheading only suggests their similarity to such seeds. The brochure you submitted regarding automatic bean growing factory equipment, notes that beans growing in the field are subject to acidity and alkalinity elements. This would seem to indicate that while your beans are not so used, they are of a kind used for sewing. Additional U.S. Note 3 to Chapter 7, HTSUSA, indicates that articles of a kind can be covered by this chapter whether they can be used for food, sowing or planting. Clearly then, the proper classification for the beans is in heading 0713.

We have also considered the manner in which the mung beans were classified under the Tariff Schedules of the United States Annotated (TSUSA) since your broker suggested that they were classified differently thereunder. We first note that the classification under the TSUSA does not govern classification under the HTSUSA. This is particularly relevant in this case since the provision for dried vegetables was separate from the provision for seeds under the TSUSA. This is not the case under the HTSUSA.

In regard to your claim of non-uniformity in the classification of mung beans, we note that our National Import Specialist (NIS), for this commodity, has recently advised the field import specialists that dried leguminous vegetables are to be considered seeds of a kind used for sowing. We anticipate that such instruction should help eliminate any non-uniformity problems.

HOLDING:

The dried mung beans imported from Australia or Thailand are properly classifiable under subheading 0713.31.10, HTSUSA, and are dutiable at a general rate of duty of 3.3 per kilogram.

New York Ruling Letter 854234 is found to be correct and is hereby affirmed.

Sincerely,

John Durant, Director
Commercial Rulings Division

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