CLA-2 CO:R:C:F 089380
District Director of Customs
P.O. Box 610
112 West Stutsman
Pembina, North Dakota 58271
RE: Request for Further Review of Protest 3304-91-100008, dated
April 15, 1991, Concerning Whole Dried Peas
Dear Mr. Hagerty:
This ruling is on a protest that was filed against your
decision in the liquidation of Consumption Entry 144-15310896,
dated June 29, 1990.
FACTS:
The article under consideration is peas. Although the article
was entered as split peas, a Customs laboratory analyzed the peas
and found that they were uncooked dried whole peas not skinned or
split. The peas have a germination rate of less than 85 per cent.
ISSUE:
What is the classification of dried whole peas?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
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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 the peas are whole dried peas for
animal consumption and not for seeding purposes. Your office
advises us that the protestant has supplied a germination
certificate stating that the germination rate is less than 85 per
cent. The protestant believes that the peas are properly
classified in subheading 0713.10.40.80, HTSUSA, as Peas: Other:
Other: Other. The entry covering the peas was liquidated under
subheading 0713.10.10, HTSUSA, which covers Peas (Pisum sativum):
Seeds of a kind used for sowing.
We have considered subheading 0713.10, HTSUSA, as well as the
relative explanatory note. Neither the subheading nor the
explanatory note provide that the articles to be classified
thereunder are to be classified on the basis of principal or actual
use. There, in fact, is no requirement that the seeds themselves
have to be capable of germinating. As noted in Headquarters Ruling
Letter (HRL) 086216 of March 27, 1990, "Seeds of a kind used for
sowing" (emphasis added) does not demand that the seeds themselves
be actually used to reproduce, or be placed in the ground. The
subheading merely suggests their similarity to such seeds.
Additional U.S. Note 3 to Chapter 7, HTSUSA, indicates that
articles of a kind covered by Chapter 7 can be used for food, for
sowing or for planting. Clearly then, the peas under
consideration, which are similar to seeds of a kind used for
sowing, they are so classifiable.
HOLDING:
The whole dried peas are properly classifiable under
subheading 0713.10.10, HTSUSA, and are dutiable at a general rate
of 3.3/kg.
If the peas 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 (CFTA) and
section 10.301 et seq., Customs Regulations (19 CFR 10.301 et
seq.).
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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. 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