HQ H275766
CLA-2 OT:RR:CTF:TCM H275766 TSM
Ms. Tammie G. Krauskopf
Law Offices of Tammie Krauskopf, LLC
821 Huntleigh Dr.
Naperville, IL 60540
RE: Reconsideration of NY N004104; Classification of Decaf Chai Tea.
Dear Ms. Krauskopf:
This is in response to your November 19, 2014, request for reconsideration of New York Ruling Letter (NY) N004104, dated December 26, 2006, among other rulings. In that ruling, the National Commodity Specialist Division found that Decaf Chai Tea, imported into the United States by your client, Starbucks Corporation, was classified under heading 2101, HTSUS, and subheading 2101.20.90, Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for “Extracts, essences and concentrates, of coffee, tea or mate 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 that follow, we affirm NY N004104.
NY N004104, dated December 26, 2006, describes the Decaf Chai Tea as follows:
Black tea is imported into the United States and blended with rooibos (herbal tea), cinnamon, ginger, cardamom, chicory, cloves, black pepper, natural flavors and star anise. The resulting product is a bulk tea blend called Decaf Chai Tea.
In your request for reconsideration, you confirm that the Decaf Chai Tea is described as follows:
Decaf Chai Tea is comprised primarily of naturally decaffeinated black tea of foreign origin. Black tea is of the botanical genus Thea. The black tea is blended with rooibos, cinnamon (cassia), ginger, cardamom, chicory, cloves, black pepper, natural flavors and star anise to create the Decaf Chai Tea bulk tea blend. The tea is packaged into filter bags outside the United States, which are then put in envelope paper and packed into retail cartons. The filter bag tea is imported into the U.S. and sold in its retail cartons to customers at Starbucks retail stores and in grocery stores.
You argue that the Decaf Chai Tea is a tea of heading 0902, HTSUS, and cite to Note 1(c) to Chapter 21, HTSUS, which excludes flavored teas from Chapter 21, HTSUS, and directs classification in heading 0902, HTSUS. You claim that the Decaf Chai Tea is classified in subheading 0902.30.00, HTSUS, which provides for “Tea, whether or not flavored: Black tea (fermented) and partly fermented tea, in immediate packings of a content not exceeding 3 kg.”
Heading 0902, HTSUS, provides for “Tea, whether or not flavored.” The term “flavored tea” is not defined in the HTSUS or the ENs. However, ENs to heading 0902, HTSUS, state, in relevant parts, the following:
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 NY N004104, and your request for reconsideration, the Decaf Chai Tea is described as black tea “blended with rooibos,” and other ingredients. You acknowledge that while it is comprised “primarily” of black tea, it also contains rooibos, or “red tea.” You explain that the black tea in the Decaf Chai Tea has been “flavored by the addition of artificial flavorings as well as cloves, and aromatic plant.” You conclude that the Decaf Chai Tea is a flavored tea of heading 0902, HTSUS.
Black tea blended with rooibos, or “red tea,” is not a tea of heading 0902, HTSUS. Black tea is prepared from the cured leaves of the genus Camellia of flowering plants in the family Theaceae. See The Plant Encyclopedia, available online at http://www.theplantencyclopedia.org/wiki/Camellia_sinensis. Rooibos, or “red tea” is of the genus Aspalathus linearis of flowering plants in the legume family Fabaceae. See The South African National Biodiversity Institute’s Site for Information About Plants, available online at: http://www.plantzafrica.com/plantab/aspallinearis.htm; See also Natural News (a science based natural health advocacy organization), available online at: http://www.naturalnews.com/041982_rooibos_tea_health_benefits_herbal_medicine.html. The leaves of these flowering plants are used to make the herbal tea called rooibos. Id.
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”.” Decaf Chai Tea is not a product derived from the plants of the botanical genus Thea (Camellia); it is a blended tea product. Therefore, Decaf Chai Tea, a product comprised of black tea blended with rooibos, or “red tea,” and other ingredients, is not a tea of heading 0902, HTSUS. It is not excluded from Chapter 21 by Note 1(c) to Chapter 21, HTSUS. The Decaf Chai Tea is described by heading 2101, HTSUS, as a “preparation . . . with a basis of tea.”
You describe the rooibos, or “red tea,” as an “aromatic plant” and flavoring present in a “relatively small amount.” You compare the percentage of rooibos in the Decaf Chai Tea to the percentage of black tea in the product and conclude that the percentage of rooibos content is much less than the percentage of black tea. You describe the rooibos as “one minor ingredient,” and conclude that the “small amount of herbal tea” is a flavoring. However, the percentage of rooibos in the product is almost one third the percentage of black tea in the product. Aside from the black tea and rooibos, the percentages of each of the remaining ingredients you also describe as flavorings range from less than one percent (low end) to less than five percent (high end). Rooibos, or “red tea,” is not a flavoring. It is an herbal “tea,” used not as a flavoring, but instead for its herbal properties (high amount of flavonoids, no caffeine, low amounts of tannin, etc). See NY N248388, dated December 26, 2013. See also https://www.organicfacts.net/health-benefits/beverage/health-benefits-of-red-rooibos-tea.html.
You argue that the Decaf Chai Tea at issue is similar to another product called Tazo Chai Tea. You cite NY N004107, dated December 28, 2006, issued to Starbucks for a Tazo Chai Tea, which was classified in heading 0902, HTSUS. However, you note and confirm that the Tazo Chai Tea at issue in NY N004107 contained black tea, ginger, cinnamon, black pepper, cardamom, cloves and star anise. Unlike the Decaf Chai Tea, the Tazo Chai Tea only contained tea derived from the plants of the botanical genus Thea (Camellia).
Alternatively, under a GRI 3 analysis, you argue that the black tea component of the Decaf Chai Tea constitutes the essential character of the product. You explain that the percentage of rooibos, or “red tea,” in the product is less than the percentage of black tea. However, resort to GRI 3 is not appropriate when the product can be classified pursuant to GRI 1.
In accordance with the foregoing, we conclude that the Decaf Chai Tea is classified in heading 2101, HTSUS, as a “preparation … with a basis of tea.” Specifically, it is classified in subheading 2101.20.90, HTSUS, which provides for “Extracts, essences and concentrates, of coffee, tea or mate 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.”
We affirm NY N004104.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division