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HQ 085592

February 15, 1990

CLA-2:CO:R:C:G 085592 SER


TARIFF NO.: 1404.90.0000

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.


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.


What is the proper classification of konjac flour under the HTSUSA?


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.

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.

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.


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.


John Durant, Director
Commercial Rulings Division

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