CLA-2 OT:RR:CTF:TCM H260569 TSM
Ms. Tammie G. Krauskopf
Law Offices of Tammie Krauskopf, LLC
821 Huntleigh Dr.
Naperville, IL 60540
RE: Modification of NY N004103 and NY N041686; Revocation of NY G87506; Classification of Zen Tea, Green Tea and Lemongrass, and Cucumber White Tea.
Dear Ms. Krauskopf:
This is in response to your November 19, 2014, request for reconsideration of New York Ruling Letter (NY) N004103, dated December 28, 2006 and NY N041686, dated November 14, 2008. In those rulings, the National Commodity Specialist Division found that Zen Tea and Cucumber White Tea, imported into the United States by your client, Starbucks Corporation, were classified under subheading 2101.20.90, Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for “Extracts, essences and concentrates, of coffee, tea or maté and preparations with a basis of these products or with a basis of coffee, tea or maté; roasted chicory and other roasted coffee substitutes, and extracts, essences and concentrates thereof: Extracts, essences and concentrates, of tea or maté, and preparations with a basis of these extracts, essences or concentrates or with a basis of tea or maté: Other: Other: Other.” For the reasons set forth below we hereby modify NY N004103 and NY N041686. In addition, we hereby revoke NY G87506, dated March 20, 2001, which classified a Green Tea and Lemongrass under subheading 2101.20.90, HTSUS.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published in the Customs Bulletin, Volume 50, No. 34, on August 24, 2016, proposing to modify NY N004103 and NY N041686, revoke NY G87506, and revoke any treatment accorded to substantially identical transactions. No comments were received in response to this notice.
FACTS:
NY N004103, issued to Starbucks Coffee Company on December 28, 2006, describes the Zen Tea as follows:
Green tea is imported into the United States and blended with lemon verbena, spearmint, lemongrass and natural lemon essence. The resulting product is a bulk tea blend called Zen Tea.
NY N041686, issued to Starbucks Coffee Company on November 14, 2008, describes the Cucumber White Tea as follows:
White tea grown in China is imported into the United States and blended with lime peel, dandelion leaf, black Darjeeling tea, cucumber, peppermint, lemon myrtle, natural flavors and lime essence oil. The resulting product is a bulk tea blend called Cucumber White Tea.
NY G87506, issued to Liberty Richter Inc. on March 20, 2001, describes the Green Tea and Lemongrass as follows:
The merchandise in question is “green tea and lemongrass” in tea bags, packed 50 to a box for retail sale. This product is said to contain 53 percent green tea, 30 percent lemon peel, 16 percent lemongrass, and 1 percent jasmine flowers.
In your request, you explain that the Zen Tea consists of green tea which accounts for a very high proportion of the blend, and is flavored by the addition of various aromatic plants (such as lemon verbena, spearmint and lemongrass) and natural lemon essence. You explain that the Cucumber White Tea consists of white tea, which amounts to a high proportion of the blend, flavored by the addition of aromatic plants and fruits such as lime peel, lime essence and peppermint, as well as natural flavors which are sprayed on the tea during the blending operation. The teas are packaged into filter bags and retail cartons. The content of the immediate packings does not exceed 3 kg.
ISSUE:
Whether the Zen Tea, Green Tea and Lemongrass, and Cucumber White Tea are classified in heading 0902, HTSUS, as tea, or in heading 2101, HTSUS, as preparations with a basis of tea.
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.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
0902 Tea, whether or not flavored:
0902.10 Green tea (not fermented) in immediate packings of a content not exceeding 3 kg:
0902.10.10 Flavored
* * *
2101 Extracts, essences and concentrates, of coffee, tea or maté and preparations with a basis of these products or with a basis of coffee, tea or maté; roasted chicory and other roasted coffee substitutes, and extracts, essences and concentrates thereof:
2101.20 Extracts, essences and concentrates, of tea or maté, and preparations with a basis of these extracts, essences or concentrates or with a basis of tea or maté:
Other:
Other:
2101.20.90 Other
* * *
Note 1(c) to Chapter 21, HTSUS, states:
1. This Chapter does not cover:
(c) Flavored tea (heading 0902);
The ENs to heading 09.02, provide, in relevant part, as follows:
The heading covers the different varieties of tea derived from the plants of the botanical genus Thea (Camellia).
* * *
Tea which has been flavoured by a steaming process (during fermentation, for example) or by the addition of essential oils (e.g., lemon or bergamot oil), artificial flavourings (which may be in crystalline or powder form) or parts of various other aromatic plants or fruits (such as jasmine flowers, dried orange peel or cloves) is also classified in this heading.
* * *
The heading further excludes products not derived from the plants of the botanical genus Thea but sometimes called “teas,” e.g.:
(a) Maté (Paraguay tea) (heading 09.03).
(b) Products for making herbal infusions or herbal “teas.” These are classified, for example, in heading 08.13, 09.09, 12.11 or 21.06.
(c) Ginseng “tea” (a mixture of ginseng extract with lactose or glucose) (heading 21.06).
In your request, you argue that the Zen Tea at issue in NY N004103, and the Cucumber White Tea, at issue in NY N041686, are described by heading 0902, HTSUS, and should be classified in subheading 0902.10.10, HTSUS, which provides for “Tea, whether or not flavored: Green tea (not fermented) in immediate packings of a content not exceeding 3 kg: Flavored.” You argue that both the Zen Tea and the Cucumber White Tea are teas which have been flavored as described in the ENs of heading 0902, HTSUS, and that as such, they are excluded from heading 2101, HTSUS, by Note 1(c) to Chapter 21, which excludes flavored tea from that heading. In addition, you argue that the Zen Tea and the Cucumber White Tea are not preparations of heading 2101, HTSUS.
Note 1(c) to Chapter 21 excludes flavored tea, and directs classification in heading 0902, HTSUS. Therefore, our analysis begins with whether the Zen Tea, Cucumber White Tea, and Green Tea and Lemongrass are products of heading 0902, HTSUS.
Heading 0902, HTSUS, provides for “Tea, whether or not flavored.” According to the EN 09.02, heading 0902, HTSUS, covers the different varieties of tea derived from the plants of the botanical genus Thea (Camellia). The EN 09.02 also states that the heading further excludes products not derived from the plants of the botanical genus Thea but sometimes called “teas”, and at paragraph (b) includes, in relevant part, “products for making. . . herbal “teas”.” The Zen Tea at issue in NY N004103 contains green tea; the Cucumber White Tea at issue in NY N042686 contains white tea and black Darjeeling tea; and the Green Tea with Lemongrass at issue in NY G87506 contains green tea. Green tea, black Darjeeling tea, and white tea (not fermented) are derived from the plants of the botanical genus Thea (Camellia). Therefore, they are not herbal “teas” as described by the EN 09.02.
The teas have also been flavored. In the Zen Tea at issue in NY N004103, various aromatic plants such as lemon verbena, spearmint, and lemongrass have been added to the green tea for flavoring. Natural lemon essence oil is also sprayed on the green tea and botanicals during the blending operation for added flavoring. In the Cucumber White Tea at issue in NY N042686, white and black Darjeeling tea has been blended with lime peel, dandelion leaf, cucumber, peppermint, lemon myrtle, natural flavors and lime essence oil for flavoring. In the Green Tea and Lemongrass at issue in NY G87506, green tea has been blended with lemon peel, lemongrass and jasmine flowers for flavoring. The ENs to heading 0902, HTSUS, state, in relevant part, that tea that has been flavored by the addition of essential oils, artificial flavorings, or parts of various other aromatic plants or fruits is also classified in heading 0902, HTSUS.
Accordingly, we conclude that the Zen Tea, Cucumber White Tea, and Green Tea with Lemongrass are classified in heading 0902, HTSUS, as “Tea, whether or not flavored.” They are excluded from classification in Chapter 21, HTSUS, by Note 1(c) to Chapter 21. See NY N250849, dated March 24, 2014; See also NY H84094, dated August 13, 2001.
HOLDING:
By application of GRIs 1 and 6, the Zen Tea, Cucumber White Tea, and Green Tea with Lemongrass are classified in heading 0902, HTSUS, and subheading 0902.10.10, HTSUS, which provides for “Tea, whether or not flavored: Green tea (not fermented) in immediate packings of a content not exceeding 3 kg: Flavored.” The 2016 column one, general rate of duty is 6.4% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N004103, dated December 28, 2006 and NY N041686, dated November 14, 2008, are MODIFIED. NY G87506, dated March 20, 2001, is REVOKED.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division