CLA-2 CO:R:C:G 085828 ALS
Mr. Robert J. Ward, Jr.
Attorney at Law
Givens and Kelly
950 Echo Lane
Houston, Texas 77024
RE: Tariff classification of coriander
Dear Mr. Ward:
This is in response to your letter of October 13, 1989,
concerning the tariff classification of fresh coriander under the
Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise under consideration is fresh coriander, the
leafy portion of the coriander plant (Coriandrum sativum), an
annual umbelliferous plant of the parsley family which is
primarily grown for its seed. The leaf is an herb used
primarily as a flavoring or garnish in cooking.
ISSUE:
Whether fresh coriander is properly classifiable as a
vegetable in subheading 0709.90.4080, HTSUS, or as other spices,
under heading 0909, HTSUS.
LAW AND ANALYSIS:
The merchandise under consideration is a fresh herb,
coriander, and is used as a flavoring or garnish in cooking. The
inquirer claims that the merchandise is properly classifiable as
"other spices" in heading 0910, HTSUS, rather than as other
vegetable, in heading 0709, HTSUS. The inquirer points out that
coriander, whether in seed or leaf form, was classifiable under
item 161.25, TSUS, at a free rate of duty, and that the
merchandise should be classified under subheading 0910.99.60,
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HTSUS, if classification under subheading 0909.20.00 is not found
to be correct, in order to more closely maintain the goal of duty
neutrality between the TSUS and the HTSUS than would be achieved
by classification under subheading 0709.90.4080. The inquirer
notes that fresh coriander is not a food or substance for
nourishment, as are vegetables, and should not be classified
therewith. The inquirer references several sources regarding the
use of fresh coriander as a garnish or flavoring and states that
fresh coriander is used in the same manner as a spice and should
be classified under the provision of the HTSUS dealing with
spices, as was the case under the TSUS, rather than as a
vegetable. The inquirer notes that under the Summary of Trade
and Tariff Information, which dealt with the TSUS, issued in
September, 1984, by the International Trade Commission (USITC
publication 841), the term spices covered aromatic vegetable
substances (including seeds, leaves, stems, or other pertinent
plant parts) from which, ordinarily, no part of the volatile oil
or other flavoring principle has been removed. Further, the
inquirer points out that the U.S. International Trade
Commission, in several publications dealing with the United
States transfer from the TSUS to the HTSUS, e.g. USITC
publication 2051 of January, 1988, indicated that the cross-
reference for item 161.25, TSUS, was subheading 0909.20.00,
HTSUS. In addition, the inquirer states that the Customs Service
should not rely on the Explanatory Notes to the Harmonized System
which it characterizes as "unauthorized materials".
Classification under the HTSUS is governed by the General
Rules of Interpretation (GRI's). GRI 1 provides that
classification is determined first in accordance with the terms
of the heading and any relative Section or Chapter notes. In
this regard, it is noted, in accordance with legal note 2 to
Chapter 7, HTSUS, heading 0709, the word "vegetables" includes
several different vegetables, e.g. onions, garlic, used for
flavoring or seasoning. These vegetables are not considered
spices because of such use. Thus, while coriander leaves provide
flavoring for foods, they are not, ipso facto, spices
classifiable under heading 0910, HTSUS, as suggested by the
inquirer. In this regard, we have been unable to find any
source, including those referenced by the inquirer, that consider
coriander leaves vis-a-vis coriander seeds to be a spice.
Although item 161.25, TSUS, used the term coriander in its
generic sense, referring to all parts of the plant, and Heading 1
to Subpart B of Part 11, Schedule 1. TSUS, clearly showing that
the term, under that tariff system, included the leaves, flowers,
barks, roots, seeds, or other parts of the plant, Chapter 9 of
the HTSUS does not so group the parts of the plant.
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By reference to the Explanatory Notes to clarify any
ambiguity on the matter, one can note that coriander, other than
the seed, is excluded from Chapter 9, HTSUS, and that it is
considered a vegetable under Chapter 7, HTSUS. Although the
Explanatory Notes do not have a statutory basis and are not part
of the legal system, they do represent the considered views of
the classification experts from the various members countries of
the Customs Cooperation Council, including the United States.
Such notes are similar to legislative history as well as being
expert technical advice.
The aforementioned cross-reference between the TSUS and the
HTSUS issued by the International Trade Commission cross-
references item 161.25, TSUS, and subheading 0909.20.0000,
HTSUS, and states that the HTSUS classification is only a likely
classification. The user is strongly cautioned against relying
on the cross-reference in order to determine legally appropriate
tariff classification under the HTS. The publication also notes
that the cross-reference was not intended as a substitute for
the traditional tariff classification process, a determination
made by the U.S. Customs Service.
In conclusion, fresh coriander and coriander seeds, are
separately classifiable under the HTSUS. The former being
classifiable under heading 0709, HTSUS, and the latter being
classifiable under heading 0909, HTSUS.
HOLDING:
Fresh coriander is properly classifiable in subheading
0709.90.4080, HTSUS, dutiable at a rate of 25 per cent ad
valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division
6cc: A.D. New York Seaport
1cc: Legal Reference
Sarasky library
Name: 085828:
Givens and Kelly
950 Echo Lane
Houston, Texas 77024
Dear Mr. Ward:
This is in reference to your letter of October 13, 1989,
requesting reexamination of Ruling HQ 083413. You note that you
represent Mexico Produce Corporation, a party-at-interest, other
than the party-at-interest which requested the ruling. You cite
section 177.31, Customs Regulations (19 CFR 177.31) as the
authority for your request.
We have reviewed your request and note that your client was
not a party to the original request. Thus, although your client
may have an interest in the subject of the ruling, it does not
have standing regarding the subject request. The authority
cited is not pertinent to the issue you raise. You may wish to
note that the cited regulatory provision is contained in Subpart
B of Part 177, Customs Regulations (19 CFR Part 177, Subpart B)
and deals with Government Procurement; Country-of-Origin
Determinations.
The Customs Regulations dealing with who may request a
ruling and what that person may do if he disagrees with the
tariff classification set forth in a ruling letter, respectively,
are set forth in section 177.1(c) and section 177.2(c), Customs
Regulations (19 CFR 177.1(c), 177.2(C)). Further, section
177.9(c), Customs Regulations (19 CFR 177.(c)), specifically
provides that persons other than the person to whom the ruling
letter was addressed should not rely on that ruling.
In conclusion, since your client was not a party to the
original ruling request and does not, therefore, have standing to
request its reexamination, your request for reexamination of
Ruling HQ 083413 is found to be procedurally deficient and is
denied.
Sincerely,
John Durant, Director
Commercial Rulings Division