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HQ W968279





April 17, 2007

CLA-2 OT: RR: CTF: TCM W968279 ADK

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.9987

Port Director
Customs and Border Protection
555 Battery Street
San Francisco, CA 94111-2316

RE: Request for Classification; Mixed Herbs; Internal Advice 06/014

Dear Port Director

This is in response to the importer, Kwok Shing Inc.’s (Kwok Shing), request for internal advice, dated February 26, 2006, which was made in accordance with Customs and Border Protection (CBP) Regulations Part 177 (19 CFR 177). This regulation allows requests for “advice or guidance to the interpretation or proper application of the Customs and related laws with respect to a specific Customs transaction . . . from the Headquarters Office at any time, whether the transaction is prospective, current, or completed." 19 CFR §177.11(a). Specifically, the request for internal advice was made pursuant to 19 CFR §177.11(b)(2), which provides:

When no ruling has been issued. Internal advice will be sought by a Customs Service field office with respect to a current transaction for which no ruling was requested or issued under the provisions of this part whenever a difference of opinion exists as to the interpretation or proper application of the Customs and related laws to the transaction, and the field office is requested to seek such advice by an importer or other person who would have been entitled, under § 177.1(c), to request a ruling with respect to the transaction, while prospective. The request must be submitted to the field office in writing and in accordance with the provisions of paragraph (b)(3) of this section.

The Port at San Francisco forwarded Kwok Shing’s request for internal advice to CBP headquarters on May 5, 2006.

The subject merchandise was entered on November 24, 2004 and May 6, 2005 under subheading 1211.90.9090, Harmonized Tariff Schedule United States Annotated (HTSUSA), which provides for “plants and parts of plants (including seeds and fruits), of a kind used primarily in perfumery, in pharmacy or for insecticidal, fungicidal or similar purposes, fresh or dried, whether or not cut, crushed or powdered: other: other, other: other.” In 2005, CBP conducted a regulatory audit on these entries. The corresponding report, “Agricultural Referral Audit Report,” number 311-05-AGR-AU-19630, dated December 29, 2005, recommended reclassification of the subject merchandise in subheading 2106.90.9987, HTSUSA, which provides for: “food preparations not found elsewhere specified or included: other: other: other: other: other: other, herbal teas and herbal infusions comprising mixed herbs.”

Kwok Shing asserts that the original classification under subheading 1211.90.9090, HTSUSA, was correct for the merchandise which consists of two mixed herb packages, Sample Bags A and B. The Port of San Francisco agrees with the audit report that Sample Bag A should be classified under subheading 2106.90.9987, HTSUSA, but submits that Sample Bag B should be classified under subheading 2103.90.8000, HTSUSA, which provides for: “[s]auces and preparations therefor; mixed condiments and mixed seasonings; mustard flour and meal and prepared mustard: Other: Other: Mixed condiments and mixed seasonings: Other.”

In their submission, Kwok Shing requested to meet with CBP to discuss the issues at hand. On April 5, 2007, counsel for Kwok Shing and CBP held a teleconference during which their counsel presented his arguments on the matter.

FACTS:

The subject merchandise, described as two varieties of mixed herbs

The importer originally provided CBP with two samples in plastic film pouches. Both pouches featured an English ingredient list. The ingredient list on these original samples did not match the ingredient lists submitted upon entry. As a result, CBP requested new samples of the subject merchandise. In response to the request, the importer sent four different pouches of assorted herbs. Two of the pouches were placed in one clear plastic bag (Sample Bag A). Sample bag A contains two pouches which weigh 4.23oz and 3 oz respectively. The remaining two pouches were placed in a separate clear plastic bag (Sample Bag B). Sample Bag B contains two pouches which weigh 4.23 oz and 2.5 oz respectively. The ingredient list for the first entry corresponds to the ingredient list from Sample Bag B, i.e., the combined ingredients from both pouches. The ingredient list for the second entry corresponds to the ingredient list from Sample Bag A, i.e., the combined ingredients from both pouches., entered the United States in two different entries in 2004 and 2005. The merchandise is enclosed in two different plastic bags which each contain two pouches of these herbs. A letter from Kwok Shing, dated December 1, 2004, states that Sample Bag A contains the following ingredients:

Gossampinus malabarica (D.C.) merr.
Pueraria lobata (Willd.) Ohwi.
Plumeria rubra L. var. acutifolia bailey
Chrysanthemum moriolium ramat.
Lonicera japonica thumb
Prunella vulgaris l.
Artemisisa capillaris thumb
Coconut slices
Fructus fici
Apricot kernels
Radix glehniae
Dried orange peel
Ploygonatum
Diosioreae

In a letter dated, May 2, 2005, Kwok Shing states Sample Bag B contains the following ingredients:

Ganoderma lucidum
Pearl barley
Fructus ligustri
Radix glehniae
Polygonatum
Agrocybe aegrila
Fructus momordicae
Apricot kernel
Folium sauropi
Tangerine peel

The use and function of both packages is the same. They both consist of a variety of plant parts of different species which are not consumed by themselves, but are used to prepare a drinkable liquid. The dried plants are immersed in hot water for a period of time in order to draw a desired flavor. The flavored liquid is then consumed for its healthful qualities.

ISSUE:

Are the assorted mixed herbs classifiable as herbal teas and infusions under heading 2106, HTSUS?

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The HTSUS provisions under consideration are as follows:

1211 Plants and parts of plants (including seeds and fruits), of a kind used primarily in perfumery, in pharmacy or for insecticidal, fungicidal or similar purposes, fresh or dried, whether or not cut, crushed or powdered:

Other

1211.90.90 Other

Other

2103 Sauces and preparations therefor; mixed condiments and mixed seasonings; mustard flour and meal and prepared mustard:

Other:

Other:
Mixed condiments and mixed seasonings:

2103.90.80 Other

2106 Food preparations not found elsewhere specified or included:

2106.90 Other:

Other:

Other:

Other:

Other:

2106.90.99 Other

2106.90.9987 Herbal teas and herbal infusions comprising mixed herbs

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80. The relevant ENs are as follows:

The EN to heading 1211, HTSUS (EN 1211) states, in pertinent part:
the heading excludes such products consisting of plants or plant partsof different speciesor consisting of plants or parts of plants of a single or different species mixed with other substances, such as one or more plant extracts (heading 21.06).

The heading also excludes the following products of a kind used either directly for flavouring beverages or for preparing extracts for the manufacture of beverages:
mixtures consisting of different species of plants or parts of plants of this heading (heading 21.06) (Emphasis in original)

The EN to heading 2103, HTSUS (EN 2103) states, in pertinent part:

This heading covers preparations, generally of a highly spiced character, used to flavour certain dishesand made from various ingredients.Sauces are generally in liquid form. (Emphasis added)

The EN to heading 2106, HTSUS (EN 2106) states, in pertinent part:

Provided that they are not covered by any other heading of the Nomenclature, this heading covers: (Emphasis in original)

Preparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk, etc.), for human consumption.

This heading includes, inter alia:

(14) Products consisting of a mixture of plants or parts of plants of different specieswhich are not consumed as such but which are of a kind used for making herbal infusions or herbal “teas,”including products which are claimed to offer relief from ailments or contribute to general health and well-being. (Emphasis added)
Kwok Shing argues that the original classification of both packages under heading 1211, HTSUS, was correct because the assorted herbs are composed of several single species herbs mixed together that do not undergo processing, refinement, or the addition of supplements. Kwok Shing also presents a copied page of the 1997 HTSUS with a handwritten note next to subheading 1211.90.8090, HTSUS. The note reads “If mixed w sugar or anything else 2106.90.9987.” Kwok Shing claims that a CBP official wrote the message during an informed compliance interview. Initially, we note that the handwritten message made during the 1997 informed compliance interview lacks any binding effect.

Heading 1211, HTSUS, provides for plants and parts of plants. Nonetheless, “the ENs explain that the heading excludes ‘such products consisting of plants or plant partsof different species.’” Accordingly, products such as the subject mixed herbs “must be classified elsewhere.” See Headquarters Ruling Letter (HQ) 950483, dated January 9, 1992; See also HQ 089740, dated August 27, 1991 (excluding bulk potpourri from heading 1211, HTSUS); HQ 950482 and HQ 950483, dated January 9, 1992 (noting that a herbal infusion with mixed herbs could not be classified in heading 1211, HTSUS); and HQ 966771, dated September 15, 2004 (rejecting the application of heading 1211, HTSUS, to tablets with various plant parts).

Similarly, the assorted herbs are not classifiable in subheading 2103.90.80, HTSUS. In HQ 952278, dated January 26, 1993, CBP classified iron and herb products that were sold in a liquid formula. The importer in that case sought to classify the product in a provision under heading 2103, HTSUS. In response, CBP held that “because these products are not sauces, condiments or seasonings classifiable within heading 2103, they are not classifiable in a subheading falling within 2103.” The same is true of the subject merchandise. None of the ingredients listed for either Sample Bags are sauces, condiments or seasonings. As a result, the subject herbs are excluded from heading 2103, HTSUS.

Finally, we consider heading 2106, HTSUS. Kwok Shing presents two arguments in opposition to classification as such. First, that heading 2106, HTSUS, is a basket provision for merchandise that is not specified or included elsewhere, and the merchandise should be classified in a more specific heading. Second, that subheading 2106.90.9987, HTSUS, applies only to herbal teas and infusions which produce an immediately drinkable substance, unlike the subject merchandise.

Heading 2106, HTSUS, is a basket provision for goods not specified or included elsewhere. Kwok Shing argues that it is “ill-advised” to classify the subject merchandise in a basket provision simply because it contains a mixture of herbs. This argument rests on the assumption that classification in a basket provision is inferior to classification in a more specific heading. EN 2106, however, specifically provides for merchandise of this kind. The assorted herbs are a “mixture ofparts of plants of different specieswhich are not consumed as such but which are of a kind used for making herbal infusions.” While true that heading 2106, HTSUS, covers a broad spectrum of merchandise, it is directly applicable to these assorted herbs.

We next consider Kwok Shing’s second argument. Kwok Shing alleges that subheading 2106.90.9987, HTSUS provides for:

”herbal teas and herbal infusions comprising mixed herbs.” The products at issue as imported by Kwok Shing are not teas or infusions. Teas or infusions would be products processed to immediately produce a drinkable substance. The mixed herbs here are not so designed. They are not preprocessed or refined in any way, and would not produce an immediate tea drink with the simple addition of hot water. Thus, they cannot be classified in subheading 2106.90.9987, [HTSUS].

Aside from this basic statement, Kwok does not cite any legal or factual support for its claim. Furthermore, preliminary research indicates that herbal infusions, by definition, do not produce immediately drinkable substances. Instead, they are immersed in hot water for a period of time in order to draw a desired flavor Herbal infusions are different from tea because they are made using larger amounts of herbs and are steeped in an air-tight container for at least several hours.
http://www.herbalremediesinfo.com/infusions.html

Herbal infusions combine boiling water with a dried herbal remedy which is allowed to steep (sit on the counter without additional heat) for an extended period of time, usually several hours. www.susanemead.com/herbal-glossary.htm. Finally, CBP has previously classified herbs that did not produce an immediately drinkable substance in heading 2106, HTSUS. See New York Ruling Letter (NY) F82237, dated February 8, 2000. Without further explanation, this argument does not affect our decision.

Finally, Kwok Shing seeks to distinguish two CBP rulings, NY F82237, and HQ 950483, which place substantially similar merchandise in heading 2106, HTSUS. In HQ 950483, an herbal infusion was classified in heading 2106, HTSUS. Kwok Shing distinguishes the infusion on the basis that it was designed for immediate consumption and packaged in individual tea bags. We note that the first claim is a mere assumption put forward by Kwok Shing and is not supported by the ruling itself. Furthermore, Kwok Shing asserted, without explanation, that the use of a tea bag was a determinative factor in that ruling. Kwok Shing also seeks to distinguish HQ 950483 on the basis that the herbal infusion contained other substances like cinnamon and orange peel. Among the ingredients listed in Sample Bag A are coconut slices, dried orange peel, and apricot kernels. Likewise, the ingredients listed in the Sample Bag B include tangerine peel and apricot kernel. Contrary to Kwok Shing’s assertion, HQ 950483 supports classification of the subject merchandise in heading 2106, HTSUS.

In NY F82237, CBP classified a product identified as ‘Kam Wo Tea’ in heading 2106, HTSUS. This “tea” was a “mixture of dried Chinese herbs packed in boxes.[which was to be] combined with boiling water and allowed to stand for 15 minutes before drinking.” NY F82237. Like the Kam Wo Tea, the subject merchandise is used by a purchaser who would “simply imbibe the drink which is the result of cooking the herbs The above information was sent in an e-mail by counsel for Kwok Shing, dated June 12, 2006,.” (Emphasis added). Additionally, the subject merchandise is a mixture of several different herbs comprised of different plant parts. Kwok Shing seeks to distinguish this ruling on the basis that the Kam Wo product was specifically identified as a “tea” while the subject mixed herbs are not. While three of the subject pouches are identified as mixed herbs, the 3 oz pouch in Sample Bag A is specifically identified as “five flower tea The name “Five Flower Tea” is written in Chinese characters above the English name, “Assorted Herbs.”.” Even if none of the pouches were specifically identified as tea, however, this argument alone is insufficient to distinguish the subject mixed herbs from the substantially similar merchandise in NY F82237.

HOLDING:

The subject merchandise is classified in subheading 2106.90.9987, HTSUSA, which provides for: “food preparations not found elsewhere specified or included: other: other: other: other: other: other, herbal teas and herbal infusions comprising mixed herbs.” The 2004 and 2005 general, column one rates of duty were 6.4 % percent ad valorem.

You are to mail this decision to the internal advice applicant no later than 60 days from the date of this letter. On that date Regulations and Rulings of the Office of International Trade, will take steps to make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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