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DEPARTMENT OF THE TREASURY
U.S. CUSTOMS SERVICE

WASHINGTON, D.C.
HQ 086011

CLA-2:CO:R:C:G 086011 SR

CATEGORY: CLASSIFICATION

TARIFF NO.: 0704.90.4040

Mr. David O. Elliott
Barnes, Richardson & Colburn
475 Park Avenue South
New York, N.Y. 10016

RE: Ruling request for Napa or Chinese Cabbage Dear Mr. Elliott:
This is in reference to your letter dated November 17, 1989, requesting the tariff classification of Chinese cabbage under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The merchandise is imported from Canada.

FACTS:

The merchandise at issue is Napa or Chinese cabbage. This is the vegetable Brassica pekinensis. It has an elongated, cylindrical head of crisp leaves.

ISSUE:

Whether Napa or Chinese cabbage is classifiable as cabbage under subheading 0704.90.2000, HTSUSA, or as similar edible brassicas under subheading 0704.90.4040, HTSUSA.

LAW AND ANALYSIS:

The tariff Provisions at issue are subheading 0704.90.2000, HTSUSA, which provides for cabbages, cauliflower, kohlrabi, kale and similar edible brassicas, fresh or chilled, other (including
sprouting broccoli (Brassica oleracea var. Italica), cabbage; and subheading 0704.90.4040, HTSUSA, which provides for cabbages, cauliflower, kohlrabi, kale and similar edible brassicas, fresh or chilled, other (including sprouting broccoli (Brassica oleracea var. Italica), other, other.

The Explanatory Notes provide the official interpretation of the tariff at the international level. The Explanatory Notes to heading 0704 state that the fresh or chilled products of this heading include other headed brassicas (e.g., white cabbage, Savoy cabbage, red cabbage, Chinese cabbage), collards, kale and other leafy brassicas, sprouting broccoli and other sprouting brassicas, and kohlrabi. Under the Explanatory Notes the Napa is classifiable under heading 0704, HTSUSA. However, the subheading breakouts at issue are at the U.S. eight and ten digit breakout level; therefore, the Explanatory Notes have no significance at this level.

It is argued that cabbage is provided for in an eo nomine provision that includes all forms of the article. This may be true, however, Chinese or Napa cabbage is a different type of vegetable and is not a form of cabbage. Cabbage is the vegetable Brassica oleracea capitata, which includes white, red and savoy cabbage. The United States definition of cabbage according to the Summary of Trade and Tariff Information, Schedule 1, Volume 7, p. 17 (1968), is a vegetable plant with tightly clustered leaves which form a head. On the other hand, chinese cabbage is the vegetable Brassica pekinensis, which is defined in World Vegetables, Mas Yamaguchi, (1983), p. 228, as resembling lettuce in forming an elongated compact head and is not cabbage at all.

All of the other vegetables that are named in the heading and subheadings, cauliflower, kohlrabi, kale, headed and sprouting broccoli, are of the genus Brassica oleracea. White cabbage, red cabbage, and savoy cabbage are also of the genus Brassica oleracea. The heading uses the word "cabbages", whereas the subheading uses the word "cabbage." This implies that not all vegetables that are called cabbage are classified under the cabbage subheading; only those under the Capitata or cabbage group that are commonly considered to be cabbage.

Under the Tariff Schedules of the United States (TSUS), Chinese cabbage was not classified under the provision for cabbage; rather, it was classified as other vegetables and dutiable at a rate of 25 percent ad valorem.

The Chinese cabbage at issue is not of the same definition or genus as the cabbage that is Brassica oleracea capitata. For this reason, Chinese cabbage is not classifiable as cabbage. It is classifiable under subheading 0704.90.4040, HTSUSA, which provides for cabbages and similar edible brassicas, fresh or chilled, other, other, other.

HOLDING:

The Chinese cabbage at issue is classifiable under subheading 0704.90.4040, HTSUSA, which provides for cabbages and similar edible brassicas, fresh or chilled, other, other, other. The rate of duty, if this merchandise is considered "goods originating in the territory of Canada" and all applicable regulations are met, is 20 percent ad valorem under the special duty rate column. Otherwise, the merchandise is dutiable at the rate of 25 percent ad valorem under the General duty rate column.

Sincerely,

John Durant, Director
Commercial Rulings Division

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