CLA-2 OT:RR:CTF:TCM H223701 LWF
Todd R. Craun, President
South American Organics
1416 Woodford Road
Suite 100
Wayne, PA 19087
RE: Revocation of Headquarters Ruling Letter (HQ) 087765, dated November 27, 1990; Classification of Chenopodium quinoa seeds
Dear Mr. Craun:
This letter is to inform you that U.S. Customs and Border Protection (CBP) has reconsidered Headquarters Ruling Letter (HQ) 087765, dated November 17, 1990, concerning the tariff classification of Chenopodium quinoa seeds (“quinoa”). In HQ 087765, CBP classified quinoa in subheading 1212.99, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Locust beans, seaweeds and other algae, sugar beet and sugar cane, fresh, chilled, frozen or dried, whether or not ground; fruit stones and kernels and other vegetable products (including unroasted chicory roots of the variety Cichorium intybus sativum) of a kind used primarily for human consumption, not elsewhere specified or included: Other.” CBP has reviewed HQ 087765 and finds the ruling to be incorrect. Accordingly, for the reasons set forth below, we are revoking HQ 087765.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke Ruling Letter HQ 087765, dated November 27, 1990, was published on July 3, 2013, in Volume 47, Number 28, of the Customs Bulletin and Decisions. No comments were received in response to the Notice.
FACTS:
The merchandise at issue in HQ 087765 consists of Chenopodium quinoa seeds that are washed, dried and packaged in Bolivia for human consumption. Quinoa (Chenopodium quinoa) is defined by the Food and Agriculture Organization of the United Nations (FAO) as, a “minor cereal cultivated primarily in Andean countries.” As part of the washing process, the natural outer coating of the seed, commonly referred to as the “saponin,” is physically removed from the quinoa. As imported, the seeds are incapable of germination and cannot be used for sowing. Instead, they are imported into the United State for use as a rice-like product.
ISSUE:
Whether the quinoa is classified under heading 1008, HTSUS, as a cereal, or under heading 1212, HTSUS, as a vegetable product of a kind used primarily for human consumption, not elsewhere specified or included?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principals 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 of chapter notes and, unless other required, according to the remaining GRIs taken in their appropriate order.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HS and are thus useful in ascertaining the proper classification of merchandise. It is CBP’s practice to follow, whenever possible, the terms of the ENS when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS headings under consideration are the following:
1008 Buckwheat, millet and canary seeds; other cereals (including wild rice):
1008.50.00 Quinoa (Chenopodium quinoa).
* * * * *
1212 Locust beans, seaweeds and other algae, sugar beet and sugar cane, fresh, chilled, frozen or dried, whether or not ground; fruit stones and kernels and other vegetable products (including unroasted chicory roots of the variety Cichorium intybus sativum) of a kind used primarily for human consumption, not elsewhere specified or included:
Other:
1212.99 Other:
1212.99.91 Other.
* * * * *
EN 10.08 states, in relevant part:
(B) OTHER CEREALS
This group includes certain hybrid grains, e.g., triticale, a cross between wheat and rye.
* * * * *
Subheading 1008.50.00, HTSUS, provides for “Buckwheat, millet and canary seeds; other cereals (including wild rice): Quinoa (Chenopodium quinoa).” However, GRI 1 states, in relevant part, that “classification shall be determined according to the terms of the headings” (emphasis added). Therefore, before the instant merchandise can be classified in subheading 1008.50.00, HTSUS, it must first meet the terms of heading 1008, HTSUS.
The term “other cereals” as used in heading 1008, HTSUS, is not defined in the nomenclature or the ENs. When, as in this instance, a tariff term is not defined by the HTSUS or the legislative history, its correct meaning is its common, or commercial, meaning. Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001) (“To ascertain the common meaning of a term, a court may consult ‘dictionaries, scientific authorities, and other reliable information sources’ and ‘lexicographic and other materials.” (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271 (Fed. Cir. 1982))).
The Oxford English Dictionary defines “cereal,” in relevant part, as “plants of the family Graminaceae or grasses which are cultivated for their seed as human food; commonly comprised under the name corn or grain. (Sometimes extended to cultivated leguminous plants).” We note however, that the common meaning of “cereal” not only includes “true cereals,” such as crops of the Poaceae or Graminaceae family, but also describes certain “pseudocereals” that are harvested for their dry grain. The FAO considers the term “pseudocereal” to include crops of quinoa, buckwheat, and amaranth, and similar definitions have been adopted in wide practice by the U.S. Department of Agriculture, U.S. Food and Drug Administration, AACC International, and the International Association for Cereal Science and Technology. Consequently, we conclude that the common meaning of the term “other cereals” includes both true cereals and pseudocereals.
With respect to the instant merchandise, the FAO describes quinoa as “a minor cereal” and classifies the food with other “cereals and cereal products.” Similarly, the U.S. Department of Agriculture (USDA) identifies dry quinoa as a “cereal grain,” and the U.S. Food and Drug Administration (FDA) has issued draft guidance for industry and FDA staff concerning whole grain label statements in which it lists quinoa as an example of a “cereal grain.” Based on the foregoing, we find that quinoa is described by the term “other cereals,” as used in heading 1008, HTSUS. Consequently, insomuch as the instant merchandise is identified by the text of the heading 1008, HTSUS, we find that the quinoa is properly classified in subheading 1008.50.00, HTSUS, which provides for “Buckwheat, millet and canary seeds; other cereals (including wild rice): Quinoa (Chenopodium quinoa).”
HOLDING:
By application of GRI 1, Chenopodium quinoa seeds that are washed, dried and packaged for human consumption under heading 1008, HTSUS, specifically in subheading 1008.50.00, HTSUS, which provides for “Buckwheat, millet and canary seeds; other cereals (including wild rice): Quinoa (Chenopodium quinoa).” The column one, general rate of duty is 1.1 percent ad valorem.
Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at http://www.usitc.gov.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin and Decisions.
EFFECT ON OTHER RULINGS:
HQ 087765, dated November 17, 1990, is hereby REVOKED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division