CLA-2 RR:CR:GC 963821K
Mr. Scott D. Shauf
Coudert Brothers
Attorneys At Law
1114 Avenue of the Americas
New York, NY 10036-7703
RE: Reconsideration of New York Ruling Letter (NYRL) C88664; Milk Peanut Soup
Dear Mr. Shauf:
In a letter dated December 22, 1999, on behalf of Strong International Trading
Corporation, you requested that we reconsider NYRL C88664, dated June 11, 1998, issued to F.C.F.C. Gerlach and Company, Inc. The ruling held that a product from China described as “Milk Peanut Soup” was classified in subheading 2008.11.4500, Harmonized Tariff Schedule of the United States (HTSUS), as 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: other nuts, peanuts (ground-nuts) and other seeds, whether or not mixed together, if within the quantitative limitations of Additional U.S. 2 to Chapter 12, and entered pursuant to its provisions. If the quantitative limitations were reached, the product was held to be classified in subheading 2008.11.60, HTSUS, and subject to subheadings 9904.12.01 –9904.12.19, HTSUS. You opine that the product is classified in subheading 2104.10.00, HTSUS, as soups and broths and preparations therefor, not subject to a tariff rate quota. In preparing this ruling, consideration was also given to arguments presented on behalf of your client on July 6, 2000. Our decision follows.
FACTS:
NYRL C88664 described the product as “Redolent” brand “Milk Peanut Soup” with ingredients of 68.2% water, 13%sugar, 12% blanched groundnuts, and 6% milk contained in a 12 fluid ounce tin plate can with a spoon. You listed the same
ingredients in your submission of December 22, 1999, with the addition 0.7% emulsifying agent and referred to the product as consisting primarily of a broth. You
further indicate that it is a “fully prepared, ready to serve product” marketed in the United States as a soup, and is eaten by consumers as a soup. The sample is labeled
as “Redolent Milk Peanut Soup” and has a plastic cover with a plastic spoon inserted at the top which can be easily removed. A pull up lid permits the consumer to remove the top of the container and consume the product without any further preparation. No instructions are provided for preparation, which confirms, as contended, that the product is intended to be consumed “as is” in the container.
ISSUE:
Whether the product described as “Redolent Milk Peanut Soup” is a “soup” classified in heading 2104, HTSUS, by virtue of Rule 1 the General Rules of Interpretation (GRI), HTSUS.
LAW AND ANALYSIS
The classification of imported merchandise under the HTSUS is governed by the principles set forth in the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section and chapter notes and, unless otherwise required, according to the remaining GRI's, taken in their appropriate order. Accordingly, we first have to determine whether the product is classified under GRI 1.
Heading 2104, HTSUS, provides for soups and broths and preparations therefor. Heading 2008, HTSUS, provides for 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. Thus, if the product is elsewhere specified or included in other provisions of the tariff, than it is precluded from coverage in heading 2008.
The product is a finished product ready for consumption by the consumer rather than a preparation for a soup or broth. It is claimed that the product is a “soup” that is classified as a soup in heading 2104, an eo nomine provision and therefore it cannot be classified in heading 2008, as an article not elsewhere specified or included. We must determine whether based on all the available information, the product is in fact a soup or a dessert and/or a snack. The facts in this case are similar to the facts in Headquarters Ruling Letter (HRL) 961131, dated December 13, 1999. In HRL 961131, we concluded that the product was a dessert or a snack rather than a soup.
The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international
level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and General Rules of Interpretation of the HTSUS. Although
not controlling, the EN's for heading 2104 states that soups and preparations therefor classified in subheading 2104.10 includes:
(1) Preparations for soups or broths requiring only the addition of water, milk, etc.
(2) Soups and broths ready for consumption after heating. (Emphasis added.)
These products are generally based on vegetable products (flour, starches, tapioca, macaroni, spaghetti and the like, rice, plant extracts, etc.), meat, meat extracts, fat, fish, crustaceans, molluscs or other aquatic invertebrates, peptone, 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.
In Headquarters Ruling Letter (HRL) 950776, dated March 11, 1992, involving lotus nut paste, we stated that heading 2104, HTSUS, is regarded as a “use” provision. Additional U.S. Rules of Interpretation, 1(a), HTSUS, states as follows:
A tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use. (Emphasis added.)
The importer has the burden to show that the product as imported is principally used in the United States as a soup. The fact that some people may use the product as a soup does not sustain principal use that exceeds all other uses. It is our position that the subject product, containing 68.2% water,12% blanched groundnuts, 6% milk and 13% sugar to sweeten the peanuts, is not a soup and/or is not principally used as a soup but as a dessert or a snack.
Joy of Cooking, by Irma S. Rombauer etc., (1997 edition) at page 92, states that “Of course, you can serve soup in anything that will hold it. But over the centuries certain bowls have become traditional for certain soups, and for practical reasons.” The product in question is not intended to be served in a bowl like a soup but it is intended to be consumed from its container. The pull up container and the plastic spoon provides for the consumption of the product from the container without heating. Although a soup may be served cold, generally, as indicated in the EN’s, soups and broths are ready for consumption after heating.
Joy of Cooking at page 92, in answer to the question “Is Stock Necessary?”, responded, “it depends on the soup”. We note that no stock is added to the product that
consists of blanched peanuts in a liquid sugar syrup. A receipt for “Georgia Peanut Soup” at pages 103-104, includes chicken stock and other ingredients and is served in
warm bowls. The recipe for “Williamsburg Peanut Soup”, Congressional Club Cook Book, 1987, also includes chicken stock and other ingredients.
Under the Tariff Schedules of the United States (TSUS), the predecessor of the HTSUS, we held in HRL 084603, dated September 13, 1974, that shelled peanuts in a light syrup is not a soup but is consumed from the can as a dessert and classified under the provision for peanuts, shelled or otherwise prepared or preserved, in item 145.48, TSUS. We have continued under the HTSUS, to follow this position that the product is not a soup. See NYRLs A84907 dated June 25, 1996, and C88664 dated June 11, 1998, HRLs 089161 dated October 29, 1991, and 961131, dated December 13, 1999. See also HRL 950776 dated March 11, 1992, concerning lotus nut paste.
The product as described contains a high percentage of sugar (13% by weight), indicating that it is a dessert consisting of blanched peanuts in a (milky) sugar syrup. The product does not contain soup “stock”. The product is consumed from its container rather than in a bowl. The product is intended to be consumed without heating or any other further preparation for serving. We are satisfied, based on the information submitted and our discussion above, that the product in the United States is not in fact a “soup” classified in subheading 2104.10.00, HTSUS, whether this provision is regarded as a use provision or an eo nomine provision.
Since the product is not elsewhere specified or included in the tariff, it is classified by virtue of GRI 1, in heading 2008, HTSUS, as 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. Emphasis added.
HOLDING:
The product described above, blanched peanuts in a sugar syrup, is classified in subheading 2008.11.45, HTSUS, as other peanuts, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included if, it is within the quantitative limitations of Additional U.S. Note 2 to Chapter 12, and entered pursuant to its provisions. If the quantitative limitations have been reached, the product is classified in subheading 2008.11.60, HTSUS, an over the tariff rate quota provision.
NYRL C88664 dated June 11, 1998, is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division