CLA-2:CO:R:C:G 086283 SER
1901.90.9060, 1901.90.9095
Mr. Dennis Kovler
Traffic Manager
Mitsui Foods, Inc.
Continental Plaza
401 Hackensack Avenue
P.O. Box 825
Hackensack, NJ 07602
RE: Modification of New York Ruling Letter 828470; Oriental
foods, Dim Sum
Dear Mr. Kovler:
This is in reference to New York Ruling Letter (NYRL)
828470, dated April 20, 1988, which classified food products
under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA). Upon review of that ruling, it has been
determined that the classifications in NYRL 828470 are incorrect
and, therefore, that ruling is modified pursuant to 177.9(d), of
the Customs Regulations (19 C.F.R. 177.9(d)).
FACTS:
The merchandise at issue consists of five products of
oriental foods imported from Hong Kong. They are: turkey shomai,
comprised of 27 percent turkey meat and 20 percent shrimp;
chicken wonton, comprised of 27 percent shrimp and 13 percent
chicken; hargrow, comprised of 37 percent shrimp; turkey wok
sticker and turkey cocktail spring roll, both comprised of less
than 20 percent, by weight, of meat. All consist of a dough
jacket filled with a mixture of the meat, fish, and/or
vegetables, that is shaped, steamed, frozen and packaged.
ISSUE:
What is the proper classification of the oriental food
items under the HTSUSA?
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LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI's), taken in order. GRI 1
provides that classification shall be determined according to the
terms of the Headings and any relative section or chapter notes.
In NYRL 828470 the spring rolls were classified in
subheading 2106.90.6095, HTSUSA, which provides for food
preparations not elsewhere specified or included . . . frozen.
The shomai, wok sticker, wonton, and hargrow were classified in
subheading 1902.20.0040, HTSUSA, which provides for stuffed
pasta, whether or not cooked or otherwise prepared . . . frozen.
The rate of duty for all of the products was 10 percent ad
valorem. Upon further review, it is Customs position that the
products at issue are properly classified in different
subheadings.
Although the products classified as pasta are similar in
construction to stuffed pasta, these Oriental specialty items are
best described as filled dumplings. In trade, such products are
never referred to or marketed as pasta products. In addition,
these products are not commercially interchangeable with pasta
products. Like pasta, these dumplings have their own, distinct,
commercial identity.
Chapter 16, HTSUS, more specifically covers the products at
issue. The chapter notes state that "food preparations fall in
this chapter provided that they contain more than 20 percent by
weight of sausage, meat, meat offal, blood, fish or crustaceans,
molluscs or other aquatic invertebrates, or any combination
thereof. In cases where the preparation contains two or more of
the products mentioned above, it is classified in the heading of
Chapter 16 corresponding to the component or components which
predominate by weight." The Notes to Chapter 19, HTSUS, further
support classification in Chapter 16, HTSUS. They exclude "food
preparations containing more than 20 percent by weight of
sausage, meat, meat offal, . . ., fish or crustaceans, . . ., or
any combination thereof (Chapter 16)." Following this analysis
the shomai, wonton, and hargrow are classified in Chapter 16,
HTSUS, in the Heading corresponding to the component that
predominates by weight. The shomai, with 27 percent turkey meat
and 20 percent shrimp, would be classified in subheading
1602.31.0020, HTSUSA. The wonton, with 27 percent shrimp and 13
percent chicken, and the hargrow, with 37 percent shrimp, would
be classified in subheading 1605.20.0510, HTSUSA, when in
airtight containers, or 1605.20.0590, HTSUSA, when otherwise put
up.
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Chapter 16, as mentioned, precludes products which contain
less than 20 percent by weight of meat, fish, etc. The wok
sticker and the spring rolls contain 20 percent or less of meat
or shellfish, and therefore, is precluded from classification in
this Chapter. These products consist of a cereal-based dough
jacket, and it is Customs position that the dough wrapper
distinguishes these products from other products. Therefore,
the products are properly classified in subheading 1901.90.9060,
HTSUSA, when put up for retail sale, or 1901.90.9095, HTSUSA,
when otherwise put up.
This classification change is made pursuant to 19 C.F.R.
177.9(d)(1) which states "any ruling letter found not to be . .
. in accordance with the current view of the Customs Service may
be modified or revoked. Modification or revocation of a ruling
letter shall be effected by Customs Headquarters by giving notice
to the person to whom the ruling letter was addressed . . . ."
The effect of the modification of ruling letters is stated
in 19 C.F.R. 177.9(d)(2), which provides, "the modification . .
. of a ruling letter will not be applied retroactively with
respect to the person to whom the ruling was issued, or to any
person directly involved in the transaction to which that ruling
related . . . ."
HOLDING:
The shomai is properly classified in subheading
1602.31.0020, HTSUSA, which provides for other prepared or
preserved meat, meat offal or blood: of poultry of heading 0105:
of turkeys: prepared meals. The rate of duty is 10 percent ad
valorem. The wonton and hargrow are properly classified, when in
airtight containers, in subheading 1605.20.0510, HTSUSA, which
provides for prepared or preserved fish . . .: shrimps and
prawns: products containing fish meat; prepared meals: in
airtight containers, dutiable at 10 percent ad valorem. If
otherwise put up, the wonton and hargrow, are properly classified
in subheading 1605.20.0590, HTSUSA. The rate of duty is 10
percent ad valorem.
The spring rolls and wok sticker are properly classified, if
put up for retail sale, in subheading 1901.90.9060, HTSUSA, which
provides for food preparations of flour, meal, . . ., not
elsewhere specified or included: other: put up for retail sale.
Or if otherwise put up, in subheading 1901.90.9095, HTSUSA. The
rate of duty is 10 percent ad valorem.
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This modification is prospective, and thus, there is no
change for past entries. A copy of this ruling letter should be
attached to any further entries of this merchandise.
NYRL 828470 is hereby modified.
Sincerely,
John Durant, Director
Commercial Rulings Division