CLA-2:CO:R:C:G 085592 SER
Mr. Leonard Fertman
2049 Century Park East, Suite 1800
Los Angeles, CA 90067
RE: Konjac flour
Dear Mr. Fertman:
This is in reference to your letter of August 21, 1989,
requesting a classification under the Harmonized Tariff Schedule
of the United States Annotated (HTSUSA), of konjac flour from
Great Britain.
FACTS:
The product at issue is a tan powder made by grinding the
tubers of the plant Amorophophallus rivieri var. konjac. Then
added to the powder is two percent sunflower or soybean oil, and
trace amounts of BHA and BHT. The product will be used as an
ingredient in canned dog food. The imported konjac originates in
Thailand or the Peoples Republic of China. The tubers are then
sent to Great Britain where they are ground to a flour. The
konjac flour is then packaged in bags and shipped to the United
States following the addition of the oils and BHA and BHT.
ISSUE:
What is the proper classification of konjac flour under the
HTSUSA?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI), taken in order. GRI 1
provides that classification shall be determined according to the
terms of the Headings and any relative Section or Chapter Notes.
To aid in the interpretation of the Headings, the Explanatory
Notes are utilized. The Explanatory Notes constitute the
official interpretation of the Tariff at the international level.
-2-
There are several possible competing headings within which
the product at issue could be classified. You state that
subheading 1106.20, HTSUSA, is the proper classification for the
konjac flour, we disagree. On its face it would appear that
this Chapter would be the area in which the product at issue
should be placed. Chapter 11 covers products of the milling
industry; malt; starches; inulin; and wheat gluten. In order to
be classified in subheading 1106.20, HTSUSA, the product must
first be derived from a root or tuber of heading 0714, HTSUSA,
and the konjac flour does meet this requirement. But throughout
Chapter 11, HTSUSA, limits are placed on the extraneous additives
that the products can include and still fall within the coverage
of this Chapter. Here, after grinding to a powder; oil, BHT, and
BHA have been added. BHA and BHT are antioxidants, and their
presence in trace amounts does not affect a product's
classification in heading 1106, HTSUSA, as stated in the
Explanatory Notes. Oil, however, is not identified as a
permitted additive to the products of heading 1106, HTSUSA, and
its presence, even at two percent, would preclude classification
in this heading.
Although the limitations of the Chapter appear to be a
strict reading of the headings, it is supported by the language
of the Explanatory Notes and it is consistent with previous
Customs decisions.
Another subheading that the konjac flour could be
classified within, and one that you suggested in the
alternative, is subheading 1212.99, HTSUSA. You state that
Great Britain has classified the product at issue within this
subheading. While the Harmonized Tariff Schedule seeks
uniformity of classifications of the participating member
nations, participating nations are, nonetheless, not bound by
other nations' classification and are free to decide the
ultimate classification of goods entering their boundaries.
In relevant part, heading 1212 provides for vegetable
products of a kind primarily used for human consumption, not
elsewhere specified or included. It is therefore, a use
provision. The instant powder will be used for dog food. In
Japan, the inquirer states, konjac flour is used as a human food
ingredient to produce a jelly-like product called "konnyaku",
which itself is a commonly imported product. A use provision
such as heading 1212, however, is governed by Additional U.S.
Rule of Interpretation 1(a), which requires a product's principal
use be its use in the United States at, or immediately prior to
the date of importation. Since the product at issue will be used
in animal foods, and lacking any evidence of a principal human
food use in the United States, the product at issue is precluded
from classification in subheading 1212.99, HTSUSA.
-3-
Another possible classification is under Heading 2008,
HTSUSA, which provides for edible parts of plants otherwise
prepared or preserved. Upon examination of this chapter, it
appears that the foods listed in the subheadings and the
exemplars listed in the Explanatory Notes to this chapter, are
all goods that are for immediate consumption. The merchandise at
issue is a food additive, more specifically, an additive for dog
food, and thus, it is not a food product that is for immediate
consumption. Thus, it would be precluded from this
classification.
In the absence of a more specific provision, the instant
product would fall within heading 1404, HTSUSA, which provides
for vegetable products not elsewhere specified or included.
HOLDING:
The product at issue is properly classified in subheading
1404.90.0000, HTSUSA, which provides for vegetable products not
elsewhere specified or included: other. The product is duty free
under this provision.
Sincerely,
John Durant, Director
Commercial Rulings Division