CLA-2 OT:RR:CTF:TCM H050837 GA
Kathy Black
Office Manager
Food Partners, Inc.
P.O. Box 1478
Winter Haven, FL 33882
RE: The tariff classification of grapefruit pulp residue
Dear Ms. Black:
This is in response to your request for reconsideration of New York Ruling (NY) N020316, dated December 6, 2007. In that ruling, the National Commodity Specialist Division (NCSD) in New York found that a product described as “frozen unwashed grapefruit pulp cells” was classified under subheading 2308.00.9890, of the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), which provides for “Vegetable materials and vegetable waste, vegetable residues and byproducts, whether or not in the form of pellets, of a kind used in animal feeding, not elsewhere specified or included: Other: Other.” We note that the NCSD considered a sample of the product in making their determination. We affirm NY N020316 because we agree that the instant product is described by heading 2308, HTSUS.
In NY N020316, the product is described as being derived as follows:
The material is prepared by splitting open whole grapefruit and removing the juice sacs found inside. The juice sacs are then squeezed, forcing them to rupture so the juice can be collected. The juice is extracted and the empty juice sacs (pulp cells) are collected separately. Technically, the pulp cells (empty juice sacs) are what is left over after extracting the juice. . .
In your request for reconsideration of NY N020316, you argue that the product is an otherwise prepared or preserved fruit that is not described by heading 2308, HTSUS, because it is not used in animal feeding, but in juice beverages. You conclude that the product is classifiable in heading 2008, HTSUS, which provides for “Fruits, 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.”
The Explanatory Notes (ENs) to heading 2008, HTSUS, state, in relevant part as follows:
This heading covers fruit, nuts and other edible parts of plants, whether whole, in pieces or crushed, including mixtures thereof, prepared or preserved...
It includes, inter alia:
…
(4) Fruit pulp, sterilised, whether or not cooked.
However, the instant product is not fruit pulp, and thus not fruit otherwise prepared or preserved of heading 2008, HTSUS. In HQ H086017, dated May 9, 1990, the importer asserted that fruit pulp was the solid, fibrous material remaining after the juice was removed from the fruit. However, CBP stated “[i]t is Customs view that the fruit pulp is a fruit product which has been reduced mechanically to a pulpy mass and is not a residue.”
From the descriptions of both the product and its processing, the “pulp cells” at issue are the coarse membrane material that is screened from the juice during juice finishing operations. It is the material remaining after the juice has been expressed from the fruit. It is the byproduct of juice production and the residue of the fruit. It is not the fruit itself.
The product is described by heading 2308, HTSUS. Based on the descriptions of both the product and its processing, the “frozen unwashed citrus pulp cells” are a byproduct, residue, or what remains, from juice extraction. The product is also “of a kind used in animal feeding”. You argue that the product is not actually used in animal feed, but in juice beverages to impart additional “mouth feel”. (Emphasis added).
In The Pomeroy Collection, Ltd. v. United States, 559 F.Supp. 2d 1374, 1394 n. 23 (Ct. Int’l Trade 2008), the Court of International Trade (CIT) described different types of HTSUS provisions as follows:
A “use” provision is “a provision describing articles by the manner in which they are used as opposed to by name,” while an eo nomine provision is one “in which an item is identified by name.” Len-Ron Mfg. Co. v. United States, 334 F.3d 1304, 1308 (Fed. Cir. 2003). And there are two types of "use" provisions -- "actual use" and "principal (formerly known as "chief") use." An "actual use" provision is satisfied only if "such use is intended at the time of importation, the goods are so used and proof thereof is furnished within 3 years after the date the, goods are entered." See Additional U.S Rule of Interpretation ("ARI") 1(b) (quoted in Clarendon Mktg., Inc. v. United States, 144 F.3d 1464, 1467 (Fed. Cir. 1998)). In contrast, a "principal use" provision functions essentially "as a controlling legal label, in the sense, that even if a particular import is proven to be actually used inconsistently with its principal use, the import is nevertheless classified according to its principal use." Clarendon Mktg., 144 F.3d at 1467.
In Primal Lite, Inc. v. United States, 22 C.I.T. 697, 700 (1998), the CIT described one method to identify principal use provisions as follows:
The use of the term "of a kind" is nothing more than a statement of the traditional standard for classifying importation[s] by their use, namely, that it need not necessarily be the actual use of the importation but is the use of the kind of merchandise to which the importation belongs.
Heading 2308, HTSUS, includes the phrase “of a kind.” As such, it is a principal use provision. It is not an actual use provision. Under Additional U.S. Rule of Interpretation 1(a) (AUSR 1(a)), tariff classification under a principal use provision must be determined in accordance with the use in the United States of that class or kind to which the imported goods belong.
Thus, the product must belong to the same kind or class of goods of vegetable byproducts for animal feed. In United States v. Carborundum Co., 536 F.2d 373, 377 (CCPA 1976) (Carborundum), the U.S. Court of Customs and Patent Appeals stated that in order to determine whether an article is included in a particular class or kind of merchandise, the court must consider a variety of factors, including: (1) the general physical characteristics of the merchandise; (2) the channels, class or kind of trade in which the merchandise moves (where the merchandise is sold); (3) the expectation of the ultimate purchasers; (4) the environment of the sale (i.e., accompanying accessories and marketing); (5) usage, if any, in the same manner as merchandise which defines the class; (6) the economic practicality of so using the import; and (7) the recognition in the trade of this use. Id. While these factors were developed under the Tariff Schedule of the United States (predecessor to the HTSUS), the courts have also applied them under the HTSUS. See, e.g. Aromont USA, Inc. v. United States, 671 F.3d 1310 (Fed. Cir. 2012), Essex Manufacturing, Inc. v. United States, 30 C.I.T. 1 (2006).
We have applied the factors, and conclude that the product is of the same class or kind of vegetable byproducts used in animal feed: it is a citrus waste; it is sold within the livestock and poultry industries; purchasers expect that it will be a high energy source of feed for livestock and that it presents advantages over cereal grains; and it is recognized in the livestock industry as a byproduct feed. See also www.cattletoday.com (“Feed Supplements Come in Several Different Forms”); www.livestocklibrary.com.au; and www.fao.org (“Utilization of Fruit and Vegetable Wastes as Livestock Feed Substrates for Generation of Other Valued Added Products”).
Additionally, the Explanatory Notes (ENs) to heading 2308, HTSUS, state in relevant part, as follows:
Provided they are not included in any other more specific heading of the Nomenclature and are of a kind used in animal feeding, this headings covers vegetable products, vegetable waste, and residues and by-products from the industrial processing of vegetable materials in order to extract some of their constituents.
It covers, inter alia:
(5) Waste of fruit (peel and cores of apples, pears, etc.) and fruit pomace and marc (from the pressings of grapes, apples, pears, citrus fruit, etc.), even if they are also be used for the extraction of pectin.
The instant product meets the cited EN description of products of heading 2308, HTSUS, because it is not included in any other more specific heading, it is of a kind used in animal feeding, it is a residue or byproduct from the processing of vegetable materials in order to extract some of their constituents, and it answers to the enumerated exemplar “fruit pomace … (from the pressings of … citrus fruit).” Furthermore, whether or not the product is in the form of dry pellets is of no consequence to our analysis.
Accordingly, we find that the product described as “frozen unwashed grapefruit pulp cells” is properly classified under subheading 2308.00.9890, HTSUSA, and affirm NY N020316.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division