Category: Classification




Дата канвертавання22.04.2016
Памер28.22 Kb.
HQ 960954
September 16, 1998

CLA-2 RR:CR:GC 960954 RTR


CATEGORY: Classification
TARIFF NO.: 1211.90.8090

Port Director of Customs

Attention: Import Specialist Edward H. Webb

300 South Ferry Street

Terminal Island, California 90731
Re: Protest 2704-97-101425; dried lycii fruit; subheading

0813.40.90


Dear Mr. Webb:
This is our decision on Protest 2704-97-101425 filed against

your classification of dried lycii fruit (berries only) under the

Harmonized Tariff Schedule of the United States (HTSUS). The

entries under protest were liquidated on January 24, 1997, and

this protest timely filed on April 24, 1997. In preparing this

decision, consideration was given to supplemental submissions by

counsel.

FACTS:
According to submissions by protestant, Sunrider

Manufacturing, Inc., dried lycii fruit is known by the

pharmaceutical name "Fructus lycii," the botanical name "Lycium

barbarum L.," and the common names "wolfberry fruit" and "lycium

fruit." It is edible and when ingested in 5 - 10 mg. doses

purportedly produces salubrious effects in the kidneys, liver,

eyes, and lungs. The merchandise was entered under a provision

for "other plants and parts of plants of a kind used primarily in

perfumery, in pharmacy or for insecticidal, fungicidal or similar

purposes," of subheading 1211.90.8090, HTSUS, but was liquidated

in subheading 0813.40.90, HTSUS, which covers "fruit, dried,

other than that of headings 0801 to 0806; mixtures of nuts or of

dried fruits of this chapter: Other fruit: Other." On April 24,

1997, protestant filed this protest contending that dried lycii

fruit is classified in heading 1211, HTSUS.


ISSUE:
Whether dry dried lycii fruit (berries only) is classified

as a "plant or a part of a plant of a kind primarily used in...

pharmacy" of heading 1211, HTSUS, or as a "dried fruit" of

heading 0813, HTSUS.

LAW AND ANALYSIS:


Merchandise is classifiable under the HTSUS in accordance

with the General Rules of Interpretation (GRIs). GRI 1 states in

part that for legal purposes, classification shall be determined

according to the terms of the headings and any relative section

or chapter notes, and provided the headings or notes do not

require otherwise, according to GRIs 2 through 6.


The provisions under consideration are as follows:
0813 Fruit, dried, other than that of headings 0801 to 0806; mixtures

of nuts or of dried fruits of this chapter:


0813.40 Other fruit:
0813.40.90 Other.
* * * * *
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:


1211.90 Other:
1211.90.80 Other:
Other:
1211.90.8090 Other.

Protestant claims (1) that Customs, Los Angeles, mistakenly

concluded that the "dried lycii fruit" was identical to "litchi";

and (2) that the merchandise cannot be classified in heading

0813, HTSUS, because it is not an edible fruit but a medicinal

herb more specifically described in heading 1211, HTSUS. In

support of its position, as an attachment to its letter of

January 7, 1998, protestant's counsel submitted selections from

the "Herbal Library," and from The Wise Garden Encyclopedia.
(1) Our investigation has revealed that "dried lycii fruit"

(lycium chinense) and "lichee" (litchi chinensis) are totally

unrelated plants. Also, the former, while well-known in Asian

countries, is practically unknown in the U.S.. The latter is

commonly eaten in the U.S. as a dessert fruit.
(2) According to evidence presented by protestant, dried lycii

fruit functions to tonify the kidneys and promote the production

of essence, nourish the liver, brighten the eyes, and moisten the

lungs. In the course of our investigation we consulted the

American Botanical Council, Austin, Texas, on the pharmacological

character of dried lycii fruit. They provided us with selections

from several botanical treatises which all indicate that this

merchandise has a long history of medicinal use for the treatment

of liver, kidney and eye maladies. The treatises are:
A. The Chinese Herb Selection Guide - A Traditional and

Modern Clinical Repertory with a Summary Materia Medica for

the Health Care Practitioner, Charles A. Belanger, L.Ac.,

M.S., Phytotech Databased Publishing Co., Richmond, CA,

1997.
B. Jade Remedies - A Chinese Herbal Reference for the West,

Peter Holmes, Vol. 1, Snow Lotus Press, Boulder, CO, 1996.


C. Pharmacopoeia of the People's Republic of China (English

Edition 1992), Compiled by the Pharmacopoeia Commission of

P.R.C., Guangdong Science and Technology Press.
Additionally, we consulted purveyors of dried lycii fruit

and a Chinese apothecary about this merchandise. They are

solidly of the opinion that, although it is edible, it is almost

never consumed as a mere food. For these reasons, we believe

that dried lycii fruit is classified in heading 1211, HTSUS.
We conclude that dried lycii fruit is specifically described

in subheading 1211.90.8090, HTSUS, covering "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."


Subheading 0813.40.90, HTSUS, is a residual provision for

dried fruit. Having decided that dried lycii fruit is classified

in heading 1211, HTSUS, it is not classified in heading 0813,

HTSUS.

HOLDING:
Under the authority of GRI 1, dried lycii fruit (berries

only) is classified in subheading 1211.90.8090, HTSUS, the

provision for plants and parts of plants (including seeds and

fruits), of a kind used primarily in... in pharmacy.


This protest should be GRANTED. In accordance with Section

3A(11)(b) of Customs Directive 099 3550-065, dated August 4,

1993, Subject: Revised Protest Directive, you should mail this

decision, together with the Customs Form 19, to the protestant no

later than 60 days from the date of this letter. Any

reliquidation of the entry or entries in accordance with the

decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision the Office of

Regulations and Rulings will take steps to make the decision

available to Customs personnel via the Customs Rulings Module in

ACS and to the public via the Diskette Subscription Service, the



Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director

Commercial Rulings Division


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