CLA-2 RR:TC:FC 959003 JGH
Port Director
U.S. Customs Service
610 S. Canal Street
Chicago, Illinois 60607
RE: Decision on Application for Further Review of Protest No.
3901-95-101692, on the Classification of Hazelnuts
Dear Sir:
This protest was filed at your port on 1994 and 1995 entries
of hazelnuts from Turkey, which were liquidated in 1995.
FACTS:
The merchandise at issue is hazelnuts from Turkey which were
entered in 1994 and 1995, under the provision for other Fruit,
nuts and other edible parts of plants, otherwise prepared or
preserved, whether or not containing added sugar or other
sweetening matter or spirit, not elsewhere specified or included:
Nuts, peanuts (ground nuts) and other seeds, whether or not mixed
together: Other, including mixtures: Other, in subheading
2008.19.9090, HTSUS. Products of Turkey classifiable under this
provision were duty free under the Generalized System of
Preferences(GSP) at the time of entry.
Customs liquidated the entries under the provision for
filberts under the same heading in subheading 2008.19.2000,
HTSUS, a provision not entitled to the GSP. In one document they
were described as blanched hazelnut kernels valued at $258/100kg
in 25 kg vacuum packs.
ISSUE:
Classification of hazelnuts, prepared and preserved under the
HTSUS.
LAW AND ANALYSIS:
In behalf of the importer it is claimed that in Chapter 8,
HTSUS, hazelnuts and filberts are specifically described under
heading 0802 - "Other nuts, fresh or dried, whether or not
shelled or peeled..Hazelnuts or filberts (Corylus spp.)"; while
in chapter 20, heading 2008, only filberts are provided for (in
subheading 2008.19.2000). This, it is asserted, means that
hazelnuts are not classified in that subheading, but in the
basket (2008.19.9090). It is acknowledged that the filbert and
hazelnut are of the same genus but are of different families.
As the court has pointed out in numerous cases, where a
tariff term is not clearly defined in the tariff or the
legislative history, the correct meaning of the term is generally
resolved by ascertaining the common and commercial meaning. W.Y.
Moberly, Inc. v. United States, 924 F.2d 232 (Fed. Cir. 1991). In
order to determine the common meaning of a tariff term, the court
may rely on its own understanding of the term, as well as consult
dictionaries, lexicons and scientific authorities. Brookside
Veneers, Ltd. v. United States, 847 Fed.2d 786 (1988). A clear
consensus of definitions from the most popular dictionaries and
encyclopedias shows that the filbert and hazelnut are the same
nut. Typical is the Random House Dictionary of the English
Language which includes in the definition of Hazel, the hazelnut
or filbert. Webster's New International Dictionary notes that the
hazelnut is also known as the filbert. It is common to these
definitions that they are identified as being of the corylus
genus, as they are defined in the HTSUS provision. The conclusion
is therefore inescapable that the common and commercial name for
these nuts in the U.S. is either hazelnut or filbert.
Since it is the definition of the tariff commodity in the
United States which is determinative, it is interesting to note
that the USITC publication under the Tariff Act of 1930 on the
competitive status between the U.S. and foreign filbert
industries refers to the nuts as "Filberts (also known as
hazelnuts)..". Also in 7 CFR, section 999.400, Agricultural
Marketing Service, USDA, "Regulation governing the importation of
filberts." (a) Definitions. (1) Filberts means filberts or
hazelnuts. As the court noted in Foodcomm International v. United
States, Slip Op. 95-202 (1996), in regard to the definition of
the terms "beef" and "veal", it is settled that the definition of
a term contained in a statute or regulation dealing with non-tariff matters does not determine the common meaning of
that term for tariff purposes. However, the court went on to
state, that where the definition contained in the regulations is
consistent with the definitions consulted by the court, they
provide support for the definition.
Here the USDA definition of hazelnut as filberts is the same,
and, in this regard, consistent with the dictionaries definition.
Thus, in the U.S., hazelnuts and filberts are the same nut.
Hazelnuts are classifiable as filberts in subheading
2008.19.200, HTSUS.
HOLDING:
You are directed to deny the protest in full. A copy of this
decision should be furnished the protestant with the Form 19
Notice of Action.
In accordance with Section 3A(11)(b) of Customs Directive 099
3550-65, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to the mailing of the decision. Sixty
days from the date of this decision, the Office of Regulations
and Rulings will take steps to make the decision available to
Customs personnel via the Customs Ruling Module in ACS and the
public via the Diskette Subscription Service, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division