CLA-2 OT:RR:CTF:TCM H196098 TNA
Port Director, Los Angeles Service Port
301 E. Ocean Blvd. Suite 1400 Long Beach, CA 90802
Attn: Anita Bello, Import Specialist
Re: Application for Further Review of Protest No. 2704-11-101825; Classification of Roasted, Salted, and Flavored Sunflower Seeds
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 2704-11-101825, timely filed on August 24, 2011, on behalf of Well Luck Co., Inc. (“Well Luck” or “Protestant”). The AFR concerns the classification of roasted, salted and flavored sunflower seeds under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The subject merchandise consists of sunflower seeds (helianthus annuus) imported from China. They are imported unbroken and in the shell. They are roasted, salted, and packaged in eight to ten ounce bags that come in three varieties: 1) natural flavor; 2) spiced flavor; and 3) coconut flavor. The natural flavor variety contains sunflower seeds and salt. The spiced and coconut flavor varieties contain sunflower seeds, salt, and flavoring or spices.
Manufacturing information submitted by counsel describes the production processes for the coconut and spiced flavor varieties. The raw sunflower seeds are selected by machines to be sized and purified. After a round of hand selection and further purification, the seeds are cooked and flavored before being dried, baked, and cooled. They are then packaged into the finished product before being sold. The production process for the natural flavor variety is as follows: the seeds are cooked, flavored, and dried before being cooled and packaged for consumption.
The subject merchandise was entered on April 9, 2010 under subheading 2008.19.90, which 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: Nuts, peanuts (ground-nuts) and other seeds, whether or not mixed together: Other, including mixtures: Other, including mixtures: Other.” The port liquidated the merchandise as entered on February 25, 2011. Protestant claims that the merchandise is classified under subheading 1206.00.00, HTSUS, which provides for “Sunflower seeds, whether or not broken.”
ISSUE:
Whether roasted, salted, and flavored sunflower seeds are classified under heading 1206, HTSUS, as “Sunflower seeds, whether or not broken”; or under heading 2008, 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”?
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. 2704-11-101825 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the protested decision is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Specifically, the Protestant argues that whereas HQ 962583, dated February 24, 1999, classified flavored pumpkin seeds in heading 2008, HTSUS, the instant case involves flavored sunflower seeds, for which the legal argument is whether they can be classified eo nomine in heading 1206, HTSUS, an argument that has not yet been presented to CBP.
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.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order.
The HTSUS headings under consideration are the following:
1206 Sunflower seeds, whether or not broken
2008 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:
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 Harmonized System 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 General EN to Chapter 12, HS, states, in pertinent part, the following:
Headings 12.01 to 12.07 cover seeds and fruits of a kind used for the extraction (by pressure of by solvents) of edible or industrial oils and fats, whether they are presented for that purpose, for sowing or for other purposes…
The seeds and fruits covered by the heading may be whole, broken, crushed, husked, or shelled. They may also have undergone heat treatment designed mainly to ensure better preservation (e.g., by inactivating the lipolytic enzymes and eliminating part of the moisture), for the purposes of de-bittering, for inactivating antinutritional factors or to facilitate their use. However, such treatment is permitted only if it does not alter the character of the seeds and fruits as natural products and does not make them suitable for a specific use rather than for general use.
The EN to heading 1206, HS, states, in pertinent part, the following:
This heading covers the seeds of the common sunflower (Helianthus annuus).
The EN to heading 2008, HS, states, in pertinent part, the following:
This heading covers fruit, nuts and other edible parts of plants, whether whole, in pieces or crushed, including mixtures thereof, prepared or preserved otherwise than by any of the processes specified in other Chapters or in the preceding headings of this Chapter…
The products of this heading are generally put up in cans, jars or airtight containers, or in casks, barrels or similar containers.
Protestant argues that heading 1206, HTSUS, is an eo nomine provision. Citing Carl Zeiss, Inc. v. United States, Protestant argues that an eo nomine provision includes all forms of the subject merchandise, even improved forms. See Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999); see also Camelbak Products, LLC v. United States, 649 F.3d 1361, 2011 U.S. App. LEXIS 12385 (Fed. Cir. 2011); HQ H106782, dated September 30, 2010, citing Pomeroy Collection, Ltd. v. United States, 559 F.Supp. 2d. 1374 (Ct. Int’l. Trade 2008). Protestant also cites Casio, Inc. v. United States, for the proposition that an article “whose essential characteristic is preserved or only incidentally altered is not excluded from an unlimited eo nomine statutory designation.” See Casio, Inc. v. United States, 73 F.3d 1095, 1098 (Fed. Cir. 1996). Quoting the same case, Protestant argues that the test here is “whether the item possesses features substantially in excess of those within the common meaning of the term.” Id.
Protestant argues that the relevant question here is whether the subject merchandise’s processing and packaging results in merchandise that is not sunflower seeds, because no other provision in the HTSUS covers sunflower seeds. Protestant argues that one feature of sunflower seeds is that it is edible (i.e., fit for human consumption), and that the subject merchandise’s roasting, salting and flavoring only makes it somewhat more fit for human consumption. Protestant argues that the roasting and salting do not substantially alter the sunflower seeds’ features, appearance or essence.
Protestant further argues that for any sunflower seeds to be excluded from heading 1206, HTSUS, there must be express language providing an alternative classification. By way of example, Protestant cites heading 1202, HTSUS, which provides for “peanuts… not otherwise cooked.” Protestant argues that the subject merchandise is not excluded from heading 1206, HTSUS, because the heading does not contain such exclusionary language. Protestant also argues that EN 12.06 does not exclude the subject merchandise.
Protestant distinguishes HQ 962583, dated February 24, 1999, where CBP held that roasted and/or salted and/or flavored pumpkin seeds were correctly classified in heading 2008, HTSUS, instead of in heading 1209, HTSUS, which provides for “seeds, fruits and spores, of a kind used for sowing.” In this ruling, CBP, citing the ENs to Chapter 12, concluded that the pumpkin seeds’ roasting, salting and flavoring constituted further processing which made them ineligible for classification in Chapter 12, HTSUS. Protestant distinguishes the subject sunflower seeds by stating that unlike the pumpkin seeds of HQ 962583, the roasting, salting and flavoring of the subject sunflower seeds does not alter the character of the seeds such that they are ineligible for classification in Chapter 12, HTSUS. Protestant argues that even after roasting, salting, and flavoring, the appearance of the subject sunflower seeds is the same as its raw state, and that the roasting and salting does not affect the edibility of the sunflower seeds.
Lastly, Protestant argues that if the subject sunflower seeds cannot be classified at GRI 1 and the analysis proceeds to GRI 3(a), that heading 1206, HTSUS, provides a more specific description of the subject merchandise than heading 2008, HTSUS. Protestant argues that heading 1206, HTSUS, specifically provides for the seeds of a certain species of plants, helianthus annuus, and that heading 2008, HTSUS, by contrast, provides a more general description because it is not confined only to seeds, or only to one type of seeds.
Sunflower seeds are provided for, eo nomine, in subheading 1206.00.00, HTSUS. The Explanatory Notes to Chapter 12, HTSUS, state that the seeds and fruits covered by the headings of this chapter may be whole, broken, crushed, husked or shelled. They may also have undergone moderate heat treatment designed mainly to ensure better preservation (e.g., by inactivating the lipolytic enzymes and eliminating part of the moisture), for the purpose of de-bittering the seeds or to facilitate their use. However, such treatment is permitted only if it does not alter the character of the seeds and fruits as natural products and does not make them suitable for a specific use rather than for general use.
In general, the HTSUS chapters are organized to reflect the processing stages of a material or product. For instance, Chapter 12, HS, includes primarily raw or unmanufactured products. Chapters 20 and 21, HTSUS, include Chapter 12 products that have been further prepared, that is, food preparations for human consumption. See HQ 950002, dated November 13, 1991. The instant merchandise is described as sunflower seeds, in-shell, unbroken, roasted, salted and flavored. The production process flow charts submitted by the Protestant indicate, in relevant part, that the roasted coconut and spiced flavor sunflower seeds are cooked and flavored, then dried, and then baked; the roasted natural flavor sunflower seeds are baked.
CBP has held that cooking, roasting, preserving, or adding other ingredients may transform a primarily raw or natural product to a food preparation. See HQ 950002. In this case, the production process flow charts demonstrate that the process of baking, cooking, and flavoring the roasted sunflower seeds transforms the subject merchandise into food preparations. Protestant does not provide any evidence that the cooking and baking may be described as “moderate heat treatment designed mainly to ensure better preservation, for the purpose of de-bittering or to facilitate the sunflower seed use.” Thus, the roasting, salting and flavoring of the subject seeds alters the seeds in such a way as to make them more suitable for eating by themselves as snacks, a specific use. However, it makes them unsuitable for use in extraction for oils or fats, or as toppings for other food, which constitute the more general uses that characterize the merchandise of Chapter 12, HTSUS. See General EN to Chapter 12, HTSUS. Therefore, the subject merchandise is precluded from classification in Chapter 12, HTSUS, and heading 1206, HTSUS.
This reasoning is consistent with subsequent CBP rulings, including HQ 962583, to which Protestant cites in support of classification in heading 1206, HTSUS. In HQ 962583, CBP declined to classify merchandise in Chapter 12, HTSUS, because it had been processed to the point where it was no longer raw seeds of Chapter 12. That merchandise had been roasted and salted, similar to the processing of the subject merchandise. There is no indication that the merchandise of HQ 962583 is distinguishable from the subject merchandise, as Protestant argues. To the contrary, in HQ 962583, CBP found that the merchandise’s manufacturing process altered the character of the merchandise, the same conclusion we reached above. As a result, we find that HQ 962583 does not support Protestant’s position; to the contrary, it supports classification of the subject merchandise in heading 2008, HTSUS.
Lastly, in response to Petitioner’s “express language” argument, CBP has always classified merchandise in accordance with a tariff term’s plain meaning. If merchandise is not described by the plain words of the heading, it will be excluded from that heading, regardless of whether there is an express exclusion in the heading or whether the heading provides alternate classification. As a result, in the present case, the terms of heading 2008, HTSUS, better provide for the subject merchandise, because heading 2008, HTSUS, expressly provides for merchandise that has been processed or preserved. This is a better description of the subject merchandise than the raw sunflower seeds of heading 1206, HTSUS, regardless of the fact that heading 1206, HTSUS, does not expressly exclude processed goods.
Thus, the subject merchandise is classified in heading 2008, 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.” This conclusion is consistent with prior CBP rulings. See, e.g., NY 895361, dated March 11, 1994; NY F83482, dated March 1, 2000. Because the subject merchandise is properly classified by application of GRI 1, we do not reach GRI 3(a) or Protestant’s arguments of relative specificity.
HOLDING:
By application of GRI 1, the subject sunflower seeds are classified in heading 2008, HTSUS, and specifically in subheading 2008.19.90, which 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: Nuts, peanuts (ground-nuts) and other seeds, whether or not mixed together: Other, including mixtures: Other, including mixtures: Other.” The column one, general rate of duty is 17.9% 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