Classification of Actinidia polygama

HQ H122359 September 21, 2010 CLA-2: OT:RR:CTF:TCM H122359 DAC CATEGORY: Classification TARIFF NO.: 1404.90.90 Valerie Loew Matatabby Inc. 531 W. Hill Ave. Fullerton, CA 92832 RE: Classification of Actinidia polygama Dear Ms. Loew: This is in reply to your request for a reconsideration of the Harmonized Tariff Schedule of the United States (HTSUS) classification ruling N116241, dated August 5, 2010, of Actinidia polygama, submitted on behalf of Matatabby Inc. FACTS: In the submission dated May 29, 2010, and your letter dated July 19, 2010, you requested a tariff classification ruling for Silver vine, which is properly named Actinidia polygama. The submission of May 29, 2010, correctly described the subject merchandise, but provided an incorrect scientific name, which was Polygonum aubertii. The subject merchandise is in fact Silver vine, and is properly named Actinidia polygama. In your submissions you provided a complete product description, the ingredient breakdown, a sample, and additional information. The sample was examined and disposed of completely. You have also described the subject merchandise as “Kiwi Powder”. The subject merchandise is a fine brown powder reported to consist of 100 percent Actinidia polygama, also known as Silver vine. The subject merchandise is to be used exclusively as a cat treat. The subject merchandise will be imported in plastic bags weighing 25 kilograms each. The subject merchandise will be repackaged into 0.5 gram retail packets. In your letter of August 30, 2010, you have informed us that the correct name of the subject merchandise is Actinidia polygama, which is also known as Silver vine. You have requested the scientific name be corrected. ISSUE: Whether Actinidia polygama is classified under heading 1404, HTSUS, as a vegetable product not elsewhere specified or included. LAW AND ANALYSIS:  Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The heading 1404.90.90, HTSUS, (2010) provides for: 1404 Vegetable products not elsewhere specified or included: 1404.90 Other: 1404.90.90 Other The ENs for Chapter 14 provide in pertinent part: This Chapter covers: * * * * * (3)   Other vegetable products not elsewhere specified. * * * * * The subject merchandise is in fact Actinidia polygama, and is also known as Silver vine. The subject merchandise is to be used as a cat treat. We note that the incorrect scientific name provided previously, Polygonum aubertii, does not presently have use as a cat treat. We also note that Polygonum aubertii is also known as Silver lace vine, which is different from Silver vine. The classification ruling N116241, dated August 5, 2010, classified the subject merchandise under heading 1404, HTSUS and under subheading 1404.90.90, HTSUS. You have not contested this classification, and you agree with this classification. The Harmonized Tariff Schedule of The United States (2010) does not specifically provide for Actinidia polygama under another heading classification of the HTSUS. The Harmonized Tariff Schedule of The United States (2010) does not include Actinidia polygama under another heading classification of the HTSUS. The terms of heading 1404, HTSUS, provide for “[v]egetable products not elsewhere specified or included”, which includes the subject merchandise. Moreover, the ENs for Chapter 14 include “[o]ther vegetable products not elsewhere specified”, which includes the subject merchandise. The subject merchandise falls within the meaning of the terms of the heading 1404, HTSUS. In accordance with GRI 1 and taking into consideration the ENs for Chapter 14, the Actinidia polygama is classified by the terms of the headings under heading 1404, HTSUS. Additionally, since Actinidia polygama is not specifically provided for or included under another subheading, Actinidia polygama is classified by the terms of the subheadings under subheading 1404.90.90, HTSUS. We consider this to be a modifying ruling letter issued for the sole purpose of correcting a clerical error, under the provision of 19 U.S.C. § 1625(c)(1), publication in the Customs Bulletin is not required for a modification ruling which is only issued to correct a clerical error. HOLDING: By application of GRI 1, the classification for Actinidia polygama is 1404.90.90, HTSUS, which provides for “[v]egetable products not elsewhere specified or included…other…other.” The column one general rate of duty in the 2010 version of the HTSUS is free. Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov. A copy of this ruling letter should be attached to the entry documents filed at the time the subject merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs official handling the transaction. Effect on other rulings: Ruling N116241, dated August 5, 2010, is hereby modified. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division