OT:RR:CTF:FTM H304896 TJS
Ms. Jessica Rowe
Blue Q Corporation
103 Hawthorne Avenue
Pittsfield, MA 01201
RE: Revocation of NY N125119, HQ 953104, and HQ 086309; Classification of Instant Noodle Soup
Dear Ms. Rowe,
This is to inform you that U.S. Customs and Border Protection (“CBP”) has reconsidered New York Ruling Letter (“NY”) N125119, issued to you on October 12, 2010, as well as Headquarters Ruling Letter (“HQ”) 953104, dated April 1, 1993, and HQ 086309, dated March 1, 1990, regarding the tariff classification of instant noodle soup under the Harmonized Tariff Schedule of the United States (“HTSUS”). In those rulings, CBP classified various instant noodle soups in heading 1902, HTSUS, as pasta. We have determined those rulings to be in error. For the reasons set forth below, we are revoking NY N125119, HQ 953104, and HQ 086309.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice of the proposed action was published in the Customs Bulletin, Vol. 53, No. 48, on January 2, 2020. CBP received one comment in support of the proposed action.
FACTS:
The subject merchandise consists of various instant noodle soup products comprised of dried noodles and soup base. NY N125119 concerned the tariff classification of instant “Ramen Noodle Soup” from China consisting of a block of dried noodles and a pouch of a powdered soup base available in four different flavors: Chicken, Shrimp, Spicy Beef, and Spicy Vegetable. Package instructions directed the user to bring two cups of cold water to a boil, insert the noodles and cook for two to three minutes until noodles were tender and separated, remove from heat, and then add the soup base and stir. HQ 953104 concerned products referred to as “Oriental Style Instant Noodle With Soup” that consisted of a plastic bowl with a foil lid containing dried noodles and a packet of a powdered soup base, which enabled the consumer to make instant noodle soup by adding boiling water. The products in NY N125119 and HQ 953104 were classified in subheading 1902.30.0060, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), which provides for “Pasta, whether or not cooked or stuffed (with meat or other substances) or otherwise prepared, such as spaghetti, macaroni, noodles, lasagna, gnocchi, ravioli, cannelloni: Other pasta: Other: Other.”
The product in HQ 086309 was a soup product manufactured in Japan consisting of dried, uncooked wonton noodles and a sealed packet of a soup base. The consumer prepared the soup by adding a specified amount of boiling water to the ingredients and then simmering the mixture for two minutes. HQ 086309 classified the soup product under subheading 1902.19.40, HTSUS, which includes uncooked pasta packaged with other ingredients, provided that the pasta has not been otherwise prepared. CBP held that the mere inclusion of a sealed soup base packet in the same package as the noodles did not constitute a “preparation” of the pasta for classification purposes and that the noodle and soup base product was analogous to “pasta packaged with sauce,” which is one of the exemplars noted in subheading 1902.19, HTSUS.
ISSUE:
Whether the subject merchandise is classified in heading 1902, HTSUS, which provides for pasta, or in heading 2104, HTSUS, which provides for soup.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be “determined according to the terms of the headings 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 be applied in order.
The following HTSUS headings are under consideration:
1902: Pasta, whether or not cooked or stuffed (with meat or other substances) or otherwise prepared, such as spaghetti, macaroni, noodles, lasagna, gnocchi, ravioli, cannelloni; couscous, whether or not prepared
2104: Soups and broths and preparations therefor; homogenized composite food preparations
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the proper classification of merchandise. It is CBP's practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127 (Aug. 23, 1989).
EN 19.02 provides, in relevant part, the following:
The heading does not cover:
(b) Soups and broths and preparations therefor, containing pasta (heading 21.04).
* * *
EN 21.04 provides, in pertinent part, the following:
(A) SOUPS AND BROTHS AND PREPARATIONS THEREFOR
This category includes:
(1) Preparations for soups or broths requiring only the addition of water, milk, etc.
(2) Soups and broths ready for consumption after heating.
These products are generally based on vegetable products (vegetables, flour, starches, tapioca, pasta, rice, plant extracts, etc.), meat, meat extracts, fat, fish, crustaceans, molluscs or other aquatic invertebrates, peptones, amino-acids or yeast extract. They may also contain a considerable proportion of salt.
They are generally put up as tablets, cakes, cubes, or in powder or liquid form.
* * *
Heading 2104, HTSUS, is the provision for “soups and broths and preparations therefor.” There are no definitions for the terms “soup”, “broth”, and “preparation” in the HTSUS. Merriam-Webster dictionary defines “soup” as “a liquid food especially with a meat, fish, or vegetable stock as a base and often containing pieces of solid food.” With the addition of boiling water, the powdered soup base becomes a flavored broth containing noodles–falling within the definition of “soup.” The noodles in the products at issue are typically used in soups, as indicated by their definitions. Merriam-Webster dictionary defines “ramen” as “quick-cooking egg noodles usually served in a broth with bits of meat and vegetables.” “Wonton” is defined as “a Chinese food made of dough that is filled with meat or vegetables and often served boiled in soup.” These definitions, coupled with the fact that the subject products include soup base, support the classification of the subject products as preparations for soup. Moreover, “Ramen Noodle Soup” and “Oriental Style Instant Noodle With Soup” are sold and identified as soups.
In HQ 963821, dated July 17, 2000, CBP classified “Milk Peanut Soup” under heading 2008, HTSUS, as prepared peanuts, rather than heading 2104, HTSUS. In making its determination, CBP considered the product’s contents, noting that the high sugar content and the lack of stock indicated that the product was actually a snack or dessert rather than a soup. CBP also considered the fact that the “Milk Peanut Soup” was intended to be consumed directly from its tin can container, rather than a bowl. Here, the subject merchandise differs from the “Milk Peanut Soup” primarily in its contents and preparation. The noodle soup products at issue consist of two primary ingredients: soup base and noodles. The powdered soup base becomes soup stock with the addition of water, and is itself classifiable in heading 2104, HTSUS, as a soup preparation. See HQ 962908 (Dec. 23, 1999) (classifying under subheading 2104.10.0020, HTSUSA, two types of dried soup stocks to which the consumer adds hot water for a soup or a soup base). The inclusion of the soup base and required addition of water indicate that the subject products are soups. Additionally, the “Oriental Style Instant Noodle With Soup” in HQ 953104 was packaged in a plastic bowl with a foil lid, allowing the consumer to prepare and consume the product directly from the container. The bowl container in HQ 953104 is unlike the tin can container in HQ 963821 because soups are typically served in bowls.
In NY N043855, dated December 10, 2008, CBP addressed the classification of “Chicken Noodle Soup,” which was a dry mix composed of approximately 44% small egg-pasta shells, 36% seasoning, 18% vegetable blend, and 3% green peas. The product was mixed with water, supplemented with chicken, and heated to make the soup. CBP classified the “Chicken Noodle Soup” mix under subheading 2104.10.0020, HTSUSA, as a dried preparation for soup.
We find that the instant rulings are similar to NY N043855 where, despite consisting primarily of noodles/pasta upon importation, the products only require the addition of water to make soup. According to EN 21.04(A)(1), heading 2104, HTSUS, includes preparations for soups requiring only the addition of water. Each of the subject products instructs the user to add boiling water to the noodles and soup base to prepare the dish. Additionally, the soup base distinguishes the product as soup rather than a noodle dish. The subject merchandise would consist solely of noodles but for the soup base. It is the soup base that provides the flavor and serves as the foundation of the dish. The inclusion of the soup base implies that the product is intended as a soup rather than a pasta dish. EN 19.02 excludes soup preparations containing pasta from classification in heading 1902, HTSUS, and in fact, directs classification of such products in heading 2104, HTSUS. Because the products at issue are soup preparations that contain noodles, they are precluded from classification in heading 1902, HTSUS.
As such, the subject instant noodle soup products, are classified as soup preparations in heading 2104, HTSUS. They are specifically classified in subheading 2104.10.0020, HTSUSA, which provides for “Soups and broths and preparations therefor; homogenized composite food preparations: Soups and broths and preparations therefor: Dried.”
HOLDING:
By application of GRI 1, the instant noodle soup products are classified in heading 2104, HTSUS, specifically under subheading 2104.10.0020, HTSUSA, which provides for “Soups and broths and preparations therefor; homogenized composite food preparations: Soups and broths and preparations therefor: Dried.” The 2019 column one duty rate is 3.2% ad valorem.
Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at https://hts.usitc.gov/current.
EFFECT ON OTHER RULINGS:
NY N125119, dated October 12, 2010, HQ 953104, dated April 1, 1993, and HQ 086309, dated March 1, 1990 are hereby REVOKED in accordance with the above analysis.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Craig T. Clark, Director
Commercial and Trade Facilitation Division