CLA-2 RR:CR:GC 966202 DSS
Ms. Joyce Mikesell
Basic American Foods
2999 Oak Road, Suite 400
Walnut Creek, CA 95496
RE: Request for Reconsideration of NY I89048; Dry Potato Products
Dear Ms. Mikesell:
This is our decision on your January 6, 2003 request for reconsideration of New York Ruling letter (NY) I89048, filed against classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of certain dry potato products under subheading 2005.20.00. You submitted this request to the National Commodity Specialist Division, who forwarded it to this office for reply. No samples were included in your submission. After review of NY I89048, Customs has determined that the classification of your dry potato products under subheading 2005.20.00, HTSUS, is correct.
FACTS:
There are five types of dry potato products described by product specification sheets accompanying your original November 27, 2002 ruling request. The articles are identified as Potato Flakes (no. 2032300), Instant Potato Granules (no. 28168), Instant Potato Granules (no. 10116), Sliced Potatoes (no. 99570), and Diced Potatoes (3/8 x 3/8 x 3/8; no. 27156). The sliced and diced potatoes consist of potatoes with added sodium bisulfite. The stated ingredients for the granules are potatoes, sodium acid pyrophosphate, citric acid, and mono and diglycerides. The flakes are composed of potatoes, sodium acid pyrophosphate, sodium bisulfite, monoglycerides, citric acid, and butylated hydroxyanisole (BHA). All will be packed in multi-wall paper bags containing from 20 to 45 kilograms, net weight. According to you, the products will be manufactured in the United States and exported to Mexico.
In NY I89048, dated December 23, 2002, we classified all five types of dried potato products as “other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen,” under subheading 2005.20.00, HTSUS.
You argue that the Sliced Potatoes (no. 99570) and the Diced Potatoes (no. 27156) are properly classified in chapter 7, HTSUS, (presumably subheading 0712.90.30, HTSUS), as sliced and diced potatoes, not otherwise prepared, and that the Potato Flakes (no. 2032300), and Potato Granules (nos. 28168 and 10116) are properly classified in chapter 11, (presumably under subheading 1105.12.00, HTSUS), as flakes and granules of potatoes. In your January 6, 2003 letter, you argue that preservatives are only added to these products during production to aid the manufacturing process. In your words, the preservatives were not added “to enhance” or add value to the finished product, and consequently, the products should not be classified as prepared or preserved in heading 2005, HTSUS.
ISSUE:
What is the proper tariff classification for these dry potato products?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods 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 HTSUS provisions under consideration are as follows:
“0712 Dried vegetables, whole, cut, sliced, broken or in powder, but
not further prepared:
* * * * *
0712.90 Other vegetables: mixtures of vegetables:
* * * * *
0712.90.30 Potatoes whether or not cut or sliced but not further
prepared
* * * * *
1105 Flour, meal, powder, flakes, granules and pellets of potatoes:
* * * * *
1105.20.00 Flakes, granules and pellets
* * * * *
Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006:
* * * * *
2005.20.00 Potatoes
In interpreting the headings and subheadings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes (ENs). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUS. It is Customs practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
Note 3(c), Chapter 7, HTSUS, states that "heading 0712 covers all dried vegetables of the kinds falling in headings 0701 to 0711, other than: flour, meal, flakes, granules and pellets of potatoes (heading 1105) . . . .” However, the chapter notes for chapter 7 go on to state that, “vegetables prepared or preserved by any process not provided for in this Chapter fall in Chapter 20” (emphasis in original). Heading 1105, HTSUS, covers flour, meal, flakes, granules and pellets of potatoes. EN 11.05 states that "products of this heading may be improved by the addition of very small amounts of anti-oxidants, emulsifiers or vitamins." The EN further states that "the heading excludes products to which other substances have been added so that they take on the characteristics of potato preparations."
The products at issue are excluded from classification in chapters 7 and 11, HTSUS, because they contain preservatives. The sliced and diced potatoes contain sodium bisulfite; the flakes and granule products contain added mono and diglycerides, sodium acid pyrophosphate, sodium bisulfite, and BHA. The mono and diglycerides are antioxidants, and their presence in small quantities does not affect the classification of a product in chapter 11. However, sodium bisulfite and sodium acid pyrophosphate are preservatives used to retain food color, and do not function the same as the permitted additives. The presence of these preservatives prevents classification of the sliced and diced potatoes in heading 0712, HTSUS, and the potato granules and flakes in heading 1105, HTSUS.
In relevant part, Note 3, Chapter 20, HTSUS, provides that heading 2005 (vegetables prepared or preserved otherwise than by vinegar or acetic acid) covers products of "heading 1105 . . . which have been prepared or preserved by processes other than those" described in Chapter 11. The chapter notes for chapter 20 also state that the chapter covers products of 2005 that have been prepared or preserved by methods other than those provided for in chapter 7. As noted above, the products are potato preparations that are excluded from coverage under chapters 7 and 11, HTSUS. Accordingly, these products are classifiable in chapter 20, HTSUS. See HQ 954208, dated September 14, 1993, and HQ 952788, dated January 14, 1993.
Further, the ENs do not state that the point at which the preservatives are added to the product in the manufacturing process is a relevant consideration for classification under heading 0712 or 1105, HTSUS. The ENs only indicate that it is relevant whether the preservatives (or other additives besides trace amounts of antioxidents, emulsifiers and vitamins) are present in the product as imported. Based on the ingredient lists provided, the products as imported contain preservatives, which precludes their classification under heading 0712 or 1105, HTSUS.
Therefore, based on the foregoing analysis, all five dried potato products are classified under the provision for potatoes, prepared or preserved otherwise than by vinegar or acetic acid, other, under subheading 2005.20.00, HTSUS.
HOLDING:
Under the authority of GRI 1, these potato products are found under heading 2005, HTSUS. The products are classified under subheading 2005.20.00, HTSUS, as potatoes, “prepared or preserved otherwise than by vinegar or acetic acid, other.”
EFFECT ON OTHER RULINGS:
NY I89048 is AFFIRMED.
Sincerely,
/s/
Myles B. Harmon
Director,
Commercial Rulings Division