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HQ 953603


September 16, 1993

CLA-2 CO:R:C:F 953603 JGH

CATEGORY: CLASSIFICATION

TARIFF NO.: 1211.90.40

Area Director of Customs
New York Seaport
6 World Trade Center
New York, New York 10048

RE: Classification under the Harmonized Tariff Schedules of the United States (HTSUS) of peppermint leaves reduced to a uniform size. Internal Advice 15/93

Dear Madam:

This decision which involves the classification of peppermint leaves imported by R.C. Bigelow, Inc., from Germany is the subject of Internal Advice 15/93 initiated by your Office at the request of the firm of Adduci, Mastriani, Meeks and Schill.

FACTS:

The imported peppermint leaves are said to have been dried and cut, and shipped in 25 kg. bags. Subsequent to importation, the leaves are said to be "fogged", cleaned thoroughly by screening, magnets and dust collectors, then blended and put up in tea bags.

The leaves were entered as mint leaves: crude or not manufactured, in subheading 1211.90.20, HTSUS. Customs reclassified the leaves under the provision for other mint leaves in subheading 1211.90.40, HTSUS.

The sample submitted with the file was of peppermint leaves ground to a very small and uniform size.

ISSUE:

Classification of processed peppermint leaves under the HTSUS as crude or not manufactured mint leaves in subheading 1211.90.20 or other mint leaves in 1211.90.40, HTSUS. - 2 -

LAW AND ANALYSIS:

Since the language of the provision in the HTSUS is similar to that of the previous tariff, the TSUS, great reliance is placed on the definition of terms "Crude" and "Advanced" as used in regard to natural products in that tariff. Headnote 3(b), Part 3, Schedule 4, TSUS, defined "crude" as any product which had not been advanced in value or improved in condition by shredding, grinding, chipping, crushing, distilling, evaporating, extracting, by artificial mixing with other substances or by any other process or treatment beyond that which is essential to its proper packing and the prevention of decay or deterioration pending manufacture.

Headnote 3(c) defined the term "advanced", as used in relation to natural products, as any product which has been advanced in value or improved in condition from its crude state by any mechanical or physical process whatever beyond that which is essential to its proper packing and the prevention of decay or deterioration pending manufacture...

Of special significance was felt to be S.B. Penick & Co. v. United States, 272 F. Supp. 316, C.D. 3105 (1967). The issue involved the classification of rubbed peppermint leaves, which the court described as the inferior residue of the peppermint leave harvest, which had already been somewhat broken and sieved; a processing the court did not feel made the rubbed leaves into a partially or wholly manufactured article, so that it remained in the crude state.

The test is not whether the article has been made into a finished article but whether it has been processed enough to be considered advanced beyond the crude state. The elements quoted by the court which would be taken into consideration to see if an article was at least partially manufactured were:

1) The extent of the changes made in the raw material.

2) The amount of work remaining to be done before a finished article could be produced.

3) The similarity between the article as imported and the final product.

4) Whether the work on the imported merchandise was done primarily to facilitate the shipping thereof or to advance the article toward completion. - 3 -

In this case it is alleged that the mint leaves have been merely cut and dried, and subsequent to importation have to be "fogged", cleaned and screened before they can be blended and put up in tea bags. However, it is evident from the sample submitted that the leaves have been reduced to a very small and uniform size at importation; a size suitable for use in tea bags. In other words, from the appearance of the sample, it is obvious that the processing prior to importation was done to advance the article toward completed state; a processing which was something more than that appropriate for packing or preservation.

Under the tariff definitions of "crude" and "advanced", it is not necessary for a natural product to be completely finished to be considered "advanced", but rather that the natural product be advanced beyond that which is essential for proper packing and preservation. Even under the standards set out in the Penick case: (a) the tea leaves were cut to a uniform size; (b) they have been processed beyond that required to facilitate shipping and have been advanced toward completion; (c) the sample of the imported tea is similar to the finished article; (d) the cleaning and blending subsequent to importation while significant are not more so than the advancement made prior to importation.

HOLDING:

Peppermint leaves cut to a uniform size suitable for putting up in tea bags are processed to an advanced stage and, thus, classifiable under the provision for other mint leaves in subheading 1211.90.40, HTSUS.

A copy of this decision should be provided to the internal advice requestor.

Sincerely,

John Durant, Director

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