CLA-2-CO:R:C:F 952635 K
TARIFF No.: 2008.99.9090
District Director of Customs
Los Angeles District
300 South Ferry St. Terminal Island
San Pedro, California 90731
RE: Application For Further Review of Protest No. 2704-91-104258;
Toasted Seaweed
Dear Sir:
The following is in response to your request of September 8,
1992, for further review of the above-referenced protest.
FACTS:
The consumption entry dated March 13, 1991, was liquidated on
August 23, 1991, and a timely protest was filed on September 23,
1991.
On April 23, 1991, a Customs Broker, on behalf of the
protestant, requested a ruling concerning dried seaweed from Japan
described as for human consumption with no addition of additives
in which an electric dryer was used to extract 85 per cent of the
water contained in the seaweed. In response to the request for a
ruling, New York Ruling letter (NYRL), 862685, was issued on May
3, 1991, which held that the merchandise described as seaweed for
human consumption, containing no additives, that has been dried to
extract 85 percent of the water, and imported in sheets inside a
clear plastic packaging, was classifiable in subheading
1212.20.0000, Harmonized Tariff Schedule of the United States
(HTSUS), free of duty.
However, a manufacturer's statement refers to the "full
process of production for toasted seaweed" as consisting of two
electrical drying processes, one which removes 85 percent of the
moisture, and a second one resulting in a 5 percent moisture
content. No artificial additives are added.
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ISSUE:
The issue is whether the merchandise as described in the
manufacturer's statement is classifiable as other prepared foods
in subheading 2008.99.9090, HTSUS, and if yes, did the protestant
rely on the NYRL 862685, issued on May 3, 1991.
LAW AND ANALYSIS:
In Headquarters Ruling Letter (HRL) 088315, dated April 30,
1991, we stated that "the seaweed of heading 1212 is limited to
seaweed prepared no further than drying or reduction in size" and
that "cooking, roasting, or the addition of other ingredients
result in food preparations based on seaweed." We held that
seaweed that was dried naturally and then roasted, is provided for
as other parts of plants, otherwise prepared or preserved and
classifiable under subheading 2008.99.9090, HTSUS. We also held
in HRL 950002, dated November 13, 1991, that roasted seaweed (also
known as Yaki Nori) was classifiable in subheading 2008.99.9090,
HTSUS.
The manufacturer's statement that the seaweed is "toasted" is
uncontested and we conclude that it was toasted as the result of
two electrical drying processes resulting in a 5 percent moisture
content. Accordingly, the seaweed, as toasted seaweed, is
classifiable under subheading 2008.99.9090, HTSUS.
The protestant claims that NYRL 862685 is binding and that
the merchandise should be classifiable as dried seaweed under
subheading 1212.20.0000, HTSUS, free of duty. Under section
177.9(d)(2) of the Customs Regulations, the modification or
revocation of a prospective ruling letter will not be applied
retroactively to the person to whom the ruling was issued provided,
in part, that the request for the ruling contained no misstatement
or omission of material facts, that the developed facts are
materially the same as contained in the request for the ruling, and
the person acted in good faith.
NYRL 862685 was a prospective ruling letter and was issued to
the party who is the subject of this protest. However, the ruling
request omitted the material fact that the seaweed was processed
through the electrical equipment a second time so that the moisture
content of the seaweed was reduced to a 5 percent content. The
ruling was applicable for seaweed in which 85 percent of the
moisture was removed not for seaweed that contained 5 percent of
moisture content.
Section 177.9(d)(2) of the Customs Regulation also states that
"nothing in this paragraph will prohibit the retroactive
modification or revocation of a ruling with respect to a
transaction which was not prospective at the time the ruling was
issued, inasmuch as such a transaction was not entered into in
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reliance on a ruling from the Customs Service." The entry for
the imported seaweed, which is covered by this protest, is dated
March 13, 1991. NYRL 862685 was issued after the importation on
May 3, 1991. Accordingly, it cannot be said that the importation
was in reliance of the ruling.
HOLDINGS:
Based upon the information available, we conclude that the
imported seaweed (containing a moisture content of 5 percent) was
toasted seaweed and is classifiable in subheading 2008.99.9090,
HTSUS, as other edible parts or parts of plants, otherwise prepared
or preserved, with duty at 7 percent ad valorem.
NYRL 862685 issued on May 3, 1991, is not applicable for the
merchandise covered by this protest.
You are directed to deny the protest in full. A copy of this
decision should be attached to the Customs Form 19 and provided to
the protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division