CLA-2 RR:CR:GC 960954 RTR
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