CLA-2 CO:R:C:F 089013 ALS
District Director of Customs
P.O. Box 610
112 West Stutsman
Pembina, North Dakota 58271
RE: Request for Further Review of Protest 3401-91-100009, dated
March 20, 1991, Concerning Bean Cull Screenings
Dear Mr. Hagerty:
This ruling is on a protest that was filed against your
decisions in the liquidations of 3 entries, one on December 21,
1990, and 2 on December 28, 1990.
FACTS:
The article under consideration is bean cull screenings left
after extracting mature beans, by screening, sifting, aspiration,
electric eye sorting and, if necessary, drying, mature whole beans
(genus: Phaseolus vulgaris) of a uniform size that would meet the
demands of packagers and canners. These screenings are composed
of whole beans that are too small for processing and beans that are
damaged or cracked.
ISSUE:
What is the classification of mixtures of beans (Phaseolus
vulgaris) which are damaged (cracked, split, or have checked seed
coats) or are immature (small) which are rejected as not suitable
for processing?
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LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI's) taken in order.
GRI 1 provides that the classification is determined first in
accordance with the terms of the headings and any relative section
and chapter notes. If GRI 1 fails to classify the goods, and if
the heading and legal notes do not otherwise require, the remaining
GRI's are applied, taken in order.
The protestant states that these "screenings" are not
suitable for human consumption because beans with a damaged/cracked
seed coat break down during cooking due to the ingress of moisture.
Likewise immature (small) beans remain vitreous/solid and not
palatable. Accordingly, bean cull screenings are used for animal
feed. The protestant suggests that the bean cull screenings are
the residue left after extracting good mature sound whole bean of
a uniform size. The protestant further suggests that such
screenings should be considered as vegetable residue of a kind used
for animal feeding and should be classified under subheading
2308.90.80, HTSUSA.
In order to evaluate the protestant's arguments, we referred
to the Explanatory Notes (EN) to the Harmonized System, which
represent the official interpretation of that System at the
international level. We note in particular, in EN 23.08, which
covers heading 2308, HTSUSA, that the type of vegetable residues
and by-products covered thereby are those "...from the industrial
processing of vegetable materials in order to extract some of their
constituents." The examples provided in EN 23.08 make it clear
that industrial processing causes a change in the physical
characteristics of the article by processes such as crushing,
peeling, etc. The available information does not indicate that
the processing of the beans produces any change in the beans. It
merely sorts and separates beans with acceptable characteristics
from those with unacceptable characteristics. Thus, while the
screenings could, in a general sense, be considered "residue",
i.e., "the remainder of something after removal of a part", as
defined in The American Heritage Dictionary, Second College
Edition, such residue is not produced from the industrial
processing of vegetable materials. Accordingly, the screenings,
although they are used for animal feed, are not properly
classifiable under heading 2308, HTSUSA.
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We next considered classification of the bean cull screenings
under the provisions of chapter 7, HTSUSA, which covers edible
vegetables. The chapter notes of that chapter as well as the
general notes to the relative EN's provide that fresh or dried
vegetables fall in this chapter whether intended for use as food,
for sowing or for planting. Leguminous vegetables are a
specifically referenced example thereof. Further, EN 07.13, which
covers heading 0713, HTSUSA, where such vegetables are classified,
states that the vegetables can be of a kind used for human or
animal consumption.
The protestant refers to the variety as a mixture. In order
to determine whether the variety of beans constitute a mixture for
tariff purposes, we referred to GRI 2 and GRI 3. Based thereon,
we see that mixtures, for tariff purposes, are composite goods
consisting of different materials or substances. While the
screenings are composed of a variety of beans of the genus and
species Phaseolus vulgaris, we do not see a composite of goods
consisting of different materials or substances. We have thus
concluded that screenings are not a mixture for tariff purposes.
Thus, it is not necessary to consider the classification of the
screenings under GRI 3. Even if the screenings could be considered
a mixture for tariff purposes, we note that there is no provision
under heading 0713, HTSUSA, for mixtures.
This leaves a question as to the nature of the screenings
which are composed of a variety of beans. Some of the beans are
whole but are too small to be suitable for dry bean processing.
Some of the beans are damaged and are also unsuitable for
processing. It thus appears that some of the beans would be
considered a combination of whole beans which are classifiable in
a grouping of seeds of a kind used for sowing under the HTSUSA
since seeds and vegetables are not separated therein. As noted in
HRL 086216 of March 27, 1990, that phrase does not demand that the
seeds themselves be actually used to reproduce, or be placed in the
ground. The subheading only suggests their similarity to such
seeds. Presuming that the damaged beans are not suitable for
sowing, they would be classifiable under another subheading at a
different rate of duty. Thus, varying quantities of each shipment
of beans would be subject to different rates of duty and would,
pursuant to General Note 5 to the HTSUSA, be considered commingled
since the quantity and value of each class of goods cannot be
readily ascertained. In accordance with General Note 5, the beans
would be subject to the highest rate of duty - 4 -
applicable to any part thereof unless the consignee or his agent
segregates the goods. Since it does not appear to be practicable
to segregate the varying portions of the screenings, they would be
classifiable under the provision for seeds of a kind used for
sowing which provides for the highest rate applicable to any part
thereof.
We must next consider the appropriate subheading for the
commingled beans. Subheading 0713.33, HTSUSA, provides for Kidney
beans, including white pea beans (Phaseolus vulgaris).
The breakdown thereunder provides for seeds of a kind used for
sowing and other. Subheading 0713.39, HTSUSA, provides for beans
(Vigna spp., Phaseolus spp.) and provides for a similar breakdown
thereunder. A question arises as to which subheading is
appropriate for classification purposes. While subheading 0713.33,
HTSUSA, would seem to indicate that all Phaseolus vulgaris beans
should be classified thereunder, we note that some of beans
specifically named under subheading 0713.39, HTSUSA, e.g. Pinto
beans, are Phaseolus vulgaris beans. We note that subheading
0713.39, HTSUSA, covers Phaseolus spp. (Phaseolus species - plural)
which includes Phaseolus vulgaris and that subheading 0713.33,
HTSUSA, seems to be limited to certain beans of such genus and
species. Since the variety of beans involved in any shipment of
screenings is not a constant and will apparently vary by shipment,
we believe that it is appropriate to classify them under the
broader subheading covering beans.
HOLDING:
The bean cull screenings, consisting of a variety of whole
and damaged beans of the Phaseolus vulgaris species and genus are
classifiable under subheading 0713.39.10, HTSUSA, as dried
leguminous vegetables, beans, other, seeds of a kind used for
sowing, and dutiable at a general rate of 3.3/kg.
If the beans are goods originating in Canada in accordance
with General Note 3(c)(vii)(B), HTSUSA, they may be eligible for
a reduced rate of duty, 2.3/kg, upon compliance with the
provisions of the United States - Canada Free Trade Agreement (FTA)
and section 10.301 et seq., Customs Regulations (19 CFR 10.301 et
seq.).
Since the rate of duty under the classification indicated
above is the same as the liquidated rate, you are instructed to
deny the protest in full.
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A copy of this ruling should be attached to the Form 19 Notice
of Action furnished the protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division