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HQ 960954





September 16, 1998

CLA-2 RR:CR:GC 960954 RTR

CATEGORY: CLASSIFICATION

TARIFF NO.: 1211.90.8090

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

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