CLA-2 OT:RR:CTF:TCM H180095 TNA
Port Director, Service Port-Norfolk
U.S. Customs and Border Protection
101 E. Main Street Norfolk, VA 23510
Attn: Deborah Ryan, Import Specialist
Re: Application for Further Review of Protest No: 1401-11-100259; Lentil Strips from Italy
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 1401-11-100259, timely filed on June 30, 2011, on behalf of The Mediterranean Snack Food Co. (“Mediterranean” or “Protestant”). The AFR concerns the classification of lentil strips under the Harmonized Tariff Schedule of the United States (“HTSUS”). In coming to our decision, we have taken into account arguments presented to members of my staff at a meeting in our offices on January 31, 2013, and in a supplemental submission dated April 30, 2013. This is an amended ruling that has been updated to address arguments made for classification in heading 1905, HTSUS.
FACTS:
The subject merchandise consists of dry, uncooked lentil strips that are imported from Italy in 15 kilogram bulk bags. As imported, the lentil strips are cut in a rectangular shape measuring 3 cm by 4.5 cm to accommodate post-importation processing and retail packaging.
The subject lentil strips are produced from 40% lentil bean flour, 30% garbanzo bean flour, 3% adzuki bean powder, chickpea powder, 25% potato starch and potato fiber, and small amounts of pea starch and salt. The production process is as follows: prior to importation, the beans are milled, ground, and mixed into a flour, which is cooked and extruded into a gelatinized dough. The resulting product is then cut and dried to reduce the water content to approximately 10 percent. The dried product is imported in 15-kg bulk bags. After importation, the strips are seasoned and baked at a high heat for several minutes. They are then packaged and sold as a snack.
The subject merchandise entered on March 22, 2011 and April 30, 2011, under subheading 1905.32.00, HTSUS, which provides for “Bread, pastry, cakes, biscuits and other bakers’ wares, whether or not containing cocoa; communion wafers, empty capsules of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products: Sweet biscuits; waffles and wafers: Waffles and wafers.” U.S. Customs and Border Protection (“CBP”) liquidated the merchandise on June 10, 2011 in subheading 2005.99.97, HTSUS, as “Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006: Other vegetables and mixtures of vegetables: Other: Other.” Protestant filed this protest and AFR on June 30, 2011, claiming classification in subheading 1902.19.20, HTSUS, which provides for “Pasta, whether or not cooked or stuffed (with meat or other substances) or otherwise prepared, such as spaghetti, macaroni, noodles, lasagna, gnocchi, ravioli, cannelloni; couscous, whether or not prepared: Uncooked pasta, not stuffed or otherwise prepared: Other: Exclusively pasta.”
ISSUE:
Whether uncooked lentil strips are classified as pasta of heading 1902, HTSUS, or in heading 2005, HTSUS, as other prepared or preserved vegetables?
LAW AND ANALYSIS:
Initially, we note that this matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 1401-11-100259 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the Protestant raises questions of law which has not been previously ruled upon by the Commissioner of CBP or the customs courts. Specifically, Protestant raises the question of whether uncooked lentil strips are classified as pasta of heading 1902, HTSUS.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
The 2011 HTSUS headings under consideration are the following:
1902 Pasta, whether or not cooked or stuffed (with meat or other substances) or otherwise prepared, such as spaghetti, macaroni, noodles, lasagna, gnocchi, ravioli, cannelloni; couscous, whether or not prepared:
2005 Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006:
Note 1 to Chapter 20, HTSUS, states, in pertinent part, the following:
This chapter does not cover:
(a) Vegetables, fruit or nuts, prepared or preserved by the processes specified in chapter 7, 8 or 11;
Note 3 to Chapter 20, HTSUS, states, in pertinent part, the following:
Heading 2001, 2004 and 2005 cover, as the case may be, only those products of chapter 7 or of heading 1105 or 1106 (other than flour, meal and powder of the products of chapter 8), which have been prepared or preserved by processes other than those referred to in note 1(a).
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN to heading 1902, HTSUS, states, in pertinent part, the following:
The pasta of this heading are unfermented products made from semolinas or flours of wheat, maize, rice, potatoes, etc.
These semolinas or flours (or intermixtures thereof) are first mixed with water and kneaded into a dough which may also incorporate other ingredients (e.g., very finely chopped vegetables, vegetable juice or purées, eggs, milk, gluten, diastases, vitamins, colouring matter, flavouring).
The doughs are then formed (e.g., by extrusion and cutting, by rolling and cutting, by pressing, by moulding or by agglomeration in rotating drums) into specific predetermined shapes (such as tubes, strips, filaments, cockleshells, beads, granules, stars, elbow bends, letters). In this process a small quantity of oil is sometimes added. These forms often give rise to the names of the finished products (e.g., macaroni, tagliatelle, spaghetti, noodles).
The products are usually dried before marketing to facilitate transport, storage and conservation; in this dried form, they are brittle.
The EN to heading 2005, HTSUS, states, in pertinent part, the following:
The term “vegetables” in this heading is limited to the products referred to in Note 3 to this Chapter. These products (other than vegetables prepared or preserved by vinegar or acetic acid of heading 20.01, frozen vegetables of heading 20.04 and vegetables preserved by sugar of heading 20.06) are classified in the heading when they have been prepared or preserved by processes not provided for in Chapter 7 or 11.
Such products fall in the heading irrespective of the type of container in which they are put up (often in cans or other airtight containers)….
Examples of preparations which fall in the heading are:…
(4) Products in the form of thin rectangular tablets made from potato flour, salt and small quantities of sodium glutamate, and partly dextrinised by successive humidification and dessication. These products are intended for consumption as “chips” after deep frying for a few seconds.
Protestant argues for classification of the subject merchandise as pasta of heading 1902, HTSUS, because, in its condition as imported, it has the form of pasta and undergoes a similar manufacturing process.
In response, we note that the text of heading 19.02, provides, in relevant part, for “Pasta. . . such as spaghetti, macaroni, noodles, lasagna, gnocchi, ravioli, cannelloni; couscous, whether or not prepared. . .” In determining the meaning of tariff terms and whether specific merchandise comports with these terms, CBP has often applied the doctrine of “noscitur a sociis.” This term means “it is known by its associates.” See Barron’s Law Dictionary, 3rd Ed. 1991. As a rule of construction, it “has the effect of declaring that the meaning of a word may be ascertained by reference to the meaning of words associated with it.” See Ruth F. Sturm, Customs Law and Administration, Third Ed. section 32.11 at 63 (2007). “Noscitur a sociis” has been applied where doubt has arisen in construing tariff language. See Sturm, Id.; United States v. Imperial Wall Paper Co., 14 Ct. Cust. 280; 1926 Ct. Cust. LEXIS 335, T.D. 41886 (1926). See also HQ 957350, dated May 19, 1995; HQ 088454, dated October 11, 1991; HQ H032716, dated April 6, 2009. When applying the doctrine of “noscitur a sociis,” CBP has examined lexicographic and commercial sources to determine the meaning of the surrounding tariff terms, and examined the merchandise at issue to determine whether it comported with these definitions. See HQ 957350; HQ 088454; HQ H032716.
In the present case, an examination of lexicographic and commercial sources reveals that pasta has certain characteristics that make it pasta. The Oxford English Dictionary (“OED”) defines “pasta” as “thin strands, sheets, or other shapes of dough made from durum wheat and water (sometimes enriched with egg), freq. sold dried and usually cooked in boiling water; a dish of these, esp. one served with a sauce.” See www.oed.com. Webster’s College Dictionary defines “pasta” as “a flour paste or dough made of semolina and dried, as for spaghetti and macaroni, or used fresh, as for ravioli.” See Webster’s College Dictionary 1053 (4th Ed. 2007). The American Heritage Dictionary defines “pasta” as “1. Unleavened dough, made of wheat flour, water, and sometimes eggs, that is molded into any of a variety of shapes and boiled. 2. A prepared dish containing pasta as its main ingredient.” See http://ahdictionary .com/word/search.html?q=pasta. The Encyclopedia Brittanica defines pasta as:
Any of several starchy food pastes (pasta alimentaria) made from semolina, the purified middlings (endosperm) of a hard wheat called durum… In making pasta, semolina dough is rolled out and sliced or compacted and forced through perforated plates (dies) that form it into the desired shape. It is produced in the form of sheets, ribbons, cords, tubes, and other shapes, each with its own name (e.g., spaghetti, macaroni). The formed dough is then dried under controlled conditions. Pasta is boiled and topped with a sauce or combined with other foods before serving.
See http://www.britannica.com/EBchecked/topic/445929/pasta.
In addition, Cooking A to Z, An Encyclopedia of Terms, Techniques, Ingredients, Equipment and Over 600 Recipes states that “pasta is based on grain- usually wheat- which is combined with a liquid and kneaded to make a smooth dough or paste (hence the word pasta). The dough is then rolled out and cut or formed into the appropriate shape.” Furthermore, “commercial dried pasta is made with water and durum wheat, a particularly hard (high-protein) wheat. Ground durum wheat (known as semolina), is preferred for dry pasta because it contributes to the firm, elastic dough that is sturdy enough to be shaped by a machine and to maintain a form.” In terms of cooking, this encyclopedia states that “for best results, cook pasta in a large quantity of rapidly boiling, salted water.” It also notes that “besides being tossed in a sauce, some pasta shapes- such as lasagna and ziti, may be layered with sauce and then baked.” See Cooking A To Z: An Encyclopedia of Terms, techniques, Ingredients, Equipment, and Over 600 Recipes: Ortho Books: San Ramon, 1988 at pages 408-410.
Other commercial sources confirm this interpretation and also focus on the fact that pasta is also traditionally made with semolina or durum what. See Sharon Tyler Herbst, Barron’s Food Lover’s Companion: Barron’s Educational Series: Hauppage, 2001; www.answers.com (quoting Gale Encyclopedia of Food and Culture). See also The Wiley Dictionary of Flavors (defining “pasta” as a “food product made in part with durum wheat and other flours, as well as flavors, vegetables as coloring agents (spinach for green, tomato for orange to reddish), or artificial colors, and other ingredients. Pasta is made from finely ground particles of wheat (semolina) and or high gluten durum wheat.”).
Thus, pasta is a food that is made with semolina and wheat and is cooked by being boiled. Furthermore, whether served in a sauce or baked like lasagna, pasta is considered to be a main meal, or a significant part thereof, rather than being a snack. The different shapes in which pasta is made contributes to its ability to hold the sauce with which it is served.
This definition of pasta is consistent with EN 19.02. This EN states that pasta products are made from semolina flours of wheat, maize, rice, potatoes, etc., which are extruded into specific shapes that often give rise to the names of the finished products. Furthermore, the processes that would “serve(s) to soften the pasta without changing its basic original form,” are only boiling in water or baking in a liquid sauce. See EN 19.02. While the term “etc.” is a general term following a list of exemplars, implicating the rule of ejusdem generis, lentils and beans are not ejusdem generis with the items listed in the EN. None of the items listed in the EN are legumes and all of them are easily found in the ingredients of products commercially known as pasta. An internet search of the term “lentils” or “beans” and “pasta” brings up a plethora of recipes for lentil- or bean-based sauces for pasta but no actual pasta made of lentil or bean flours.
Thus, the subject merchandise does not comport with the exemplars of heading 1902, HTSUS. The subject merchandise is meant to be baked rather than boiled, and is meant to be eaten as a snack rather than a main meal. It is also eaten alone, without the types of sauces in which pastas are served. Furthermore, while the subject merchandise is extruded, it is extruded into a rectangular shape the size of a chip or cracker that would not serve well to hold a sauce. The fact that the subject merchandise undergoes a manufacturing process that is similar to the one outlined in EN 19.02 is insufficient to classify it as pasta of that heading.
Moreover, the subject merchandise is not commercially interchangeable with pasta. To the contrary, products such as the subject merchandise are called “half-products” in the industry and are recognized as a separate type of product with its own commercial identity. “Half-products” are dry, brittle products developed by the snack food industry to create snacks that are puffed or otherwise similarly expanded. See Wiley Encyclopedia of Food Science and Technology, 2d Ed. John Wiley & Sons, 2004; Samuel Matz: Snack Food technology. 3d Ed. Pan-Tech International, Inc. 1993. “Half-products” have no culinary use as pasta and would not be sold as pasta. Rather than being boiled, they are baked or fried, causing the release and entrapment of air, which causes a finished puffed snack food. See, e.g., http://www.freezedryfoods.com/eng/docs /snacksa.pdf; https://extruders-oerendale.weebly.com.
Lastly, the instant merchandise is nothing like the merchandise classified in the rulings to which Protestant cites. To the contrary, each of those rulings classified merchandise that fit the above definition of pasta and was commercially known as pasta. See NY C84067, dated February 19, 1998 (classifying gnocchi made of flour, potato starch, semolina, and potato flour); NY N099303, dated April 14, 2010 (classifying tagliatelle, sedani, lasagna and similar products extruded in a variety of shapes and sizes, and made from flours other than wheat, e.g., potato, maize, or carob seed); NY G85744, dated February 8, 2001 (classifying a linguini-type, dry pasta product made of soy flour, durum wheat, gluten, soy protein, and egg whites); NY 882714, dated February 22, 1993 (classifying uncooked, dried spaghetti made from durum wheat semolina, or a mixture of wheat and rye flours). Therefore, the cases cited by Protestant are not helpful in the classification analysis of the instant merchandise.
Rather, the subject merchandise is made of lentils of heading 0713, HTSUS. Legal Notes 1 and 3 to Chapter 20, HTSUS, state that heading 2005, HTSUS, provides for those products of Chapter 7, HTSUS, which have been prepared or preserved by processes other than those referred to in these headings. Heading 0713, HTSUS, provides for leguminous vegetables of heading 07.08 which have been dried, shelled, skinned or split. See EN 07.13. The merchandise of heading 0713, HTSUS, can also undergo moderate heat treatment designed to ensure better preservation and eliminating part of the merchandise’s moisture so long as such treatment does not affect the internal character of the merchandise. See EN 07.13. In the present case, the manufacturing process of the subject merchandise is beyond that of lentils of heading 0713, HTSUS. Furthermore, the exemplars of heading 2005, HTSUS, include thin rectangular tablets made of flour and salt that are fried and intended for consumption as chips. See EN 20.05. The subject merchandise comports with these exemplars.
In addition, CBP has classified similar merchandise in heading 2005, HTSUS. For example, the merchandise at issue in HQ 082009, dated October 23, 1989, consisted of snack pellets made from a paste of potato starch and various types of flour that included wheat flour, potato flour and rye flour. The paste was extruded, stamped, or otherwise formed into various shapes such as wheels, stars, twists, squares, sticks, grilles, and radiators and then dried. After importation, the shapes were fried in oil, which caused them to expand to several times their original size. The fried, enlarged products were then sold and intended to be eaten as a snack food. Citing EN 20.05, CBP noted that heading 2005, HTSUS, included products in thin rectangular form, made from potato flour salt, and other ingredients that were fried and intended for consumption as chips. As a result, CBP classified the merchandise in heading 2005, HTSUS.
Protestant argues that the subject merchandise is distinguishable from the snack pellets at issue in HQ 082009 in that HQ 082009 states only that the snack pellets are “extruded, stamped or otherwise formed into various shapes,” but does not specifically state that the flours at issue were first mixed with water and kneaded into a dough as specifically provided for in EN 19.02. Protestant also argues that the merchandise of HQ 082009 was not in the form of thin rectangular tablets required by EN 19.02.
As discussed above, classification in heading 1902, HTSUS, requires more than being processed in the same manner as pasta. The subject merchandise, despite being flour that is mixed with water, kneaded into a dough and extruded into its shape, lacks the character of pasta for all the reasons discussed above. As a result, the fact that its manufacturing process is similar to that of EN 19.02, by itself, is insufficient to warrant classification in heading 1902, HTSUS.
In the alternative, Protestant argues for classification of the subject merchandise as other bakers’ wares of subheading 1905.90.90, HTSUS. In support of this argument, Protestant cites Sabritas v. United States, 998 F. Supp. 1123 (Ct. Int’l Trade 1998).
Sabritas classified a snack called “Munchos.” Sabritas v. United States, 998 F. Supp. 1123, 1126 (Ct. Int’l Trade 1998). These “Munchos” were fabricated potato snacks made from dehydrated potato flakes, corn meal, potato starch, yeast and salt. They were baked and fried into a final product in the form of pellets that were uniform in size, color, shape and texture. The court found that these could not be classified in heading 2005, HTSUS, as potato chips because potato chips were slices of potato that had been fried in oil. As such, the court found that potato chips met the terms of heading 2005, HTSUS, an eo nomine provision, because they were “other vegetables” that had been processed according to the terms of the heading. By contrast, the court classified the “Munchos” in heading 1905, HTSUS, as “other bakers’ wares,” a basket provision, because its additional processing and ingredients meant that it could not be described as a “prepared potato,” i.e., as a potato chip, of heading 2005, HTSUS.
In contrast to the “Munchos,” the subject lentil strips are made of 75 percent ground beans, which can be described as “other vegetables” of heading 2005, HTSUS. Although the processing of the lentil strips is similar to that of the “Munchos” up to the point of being dried, the ingredients of the lentil strips are so much closer to the vegetables of heading 2005, HTSUS, that classification in this heading is not precluded, as it was in Sabritas. Therefore, Sabritas is distinguished and heading 1905, HTSUS, is inapplicable. As such, the subject lentil strips are classified in heading 2005, HTSUS.
Lastly, Protestant argues that the subject merchandise is outside the scope of Antidumping Duty (“ADD”) and Countervailing Duty (“CVD”) orders recently issued by the Department of Commerce’s International Trade Administration (“ITA”). We note that the International Trade Administration is not necessarily bound by a country of origin or classification determination issued by CBP, with regard to the scope of antidumping orders or countervailing duties. Written decisions regarding the scope of AD/CVD orders are issued by the Import Administration in the Department of Commerce and are separate from tariff classification and origin rulings issued by Customs and Border Protection. You can contact them at http://www.trade.gov/ia/ (click on “Contact Us”). For your information, you can view a list of current AD/CVD cases at the United States International Trade Commission website at http://www.usitc.gov (click on “Antidumping and countervailing duty investigations”), and you can search AD/CVD deposit and liquidation messages using the AD/CVD Search tool at http://www.cbp.gov (click on “Import” and “AD/CVD”).
HOLDING:
By application of GRI 1, the subject lentil strips are classified in heading 2005, HTSUS, and specifically in subheading 2005.99.97, HTSUS, which provides for “Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006: Other vegetables and mixtures of vegetables: Other: Other.” The column one, general rate of duty is 11.2% ad valorem.
You are instructed to DENY the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division