HQ H261687
CLA-2 OT:RR:CTF:TCM H261687 TSM
Mr. Pennfield Smith
International Barbeque Time LTD.
(107) 8811 River Rd.
Richmond, B.C., Canada V6X 1Y6
RE: Revocation of HQ 951145; Classification of flavored barbecue wood chips containing a mixture of wood shavings and a mixture of herbs and spices in a gelatin base.
Dear Mr. Smith:
This is in reference to Headquarters Ruling Letter (HQ) 951145, issued to International Barbeque Time Ltd. on May 28, 1992, concerning tariff classification of flavored barbecue wood chips containing a mixture of wood shavings and a mixture of herbs and spices in a gelatin base. In that ruling, U.S. Customs and Border Protection (“CBP”) classified the subject merchandise under heading 4421, HTSUS, which provided for “Other articles of wood.” Upon additional review, we have found this classification to be incorrect. For the reasons set forth below we hereby revoke HQ 951145.
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 (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published in the Customs Bulletin, Volume 49, No. 39, on September 30, 2015, proposing to revoke HQ 951145, and revoke any treatment accorded to substantially identical transactions. No comments were received in response to this notice.
FACTS:
HQ 951145, issued to International Barbeque Time Ltd. on May 28, 1992, describes the subject merchandise as follows:
The product under consideration is used to flavor foods when barbecuing them. The product is composed of wood chips and combinations of herbs and spices in a gelatinous base. The product is made in several flavorings. Each product unit contains a combination of a type of wood and a mixture of herbs and spices depending on the flavoring result desired. The gelatinous base, which when wet weighs 1/2 ounce and when dry weighs 1/4 ounce, is placed on a 3 ounce bed of wood shavings and packed in a 1 inch by 5 inch aluminum pan. The pan is covered with a paper/aluminum combination lid which is held in place by the edges of the pan which fold over the edge of the lid. There are 9 holes in the lid, approximately 1/8 inch in diameter, which are covered by a label which identifies the company and the herb/spice contents in French and English. The product is used for backyard barbecues. In order to use the product the user peels off the label to expose the holes and places the aluminum pan with its contents on the hot coals or lava rocks where it is heated. When so heated the product smolders and smokes causing the herb and spice flavoring and the smoke flavoring of the wood to be carried through the exposed holes to the food on the grill.
ISSUE:
What is the correct classification of the subject flavored barbecue wood chips containing a mixture of wood shavings and a mixture of herbs and spices in a gelatin base?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System 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 HTSUS provisions under consideration are as follows:
4401 Fuel wood, in logs, in billets, in twigs, in faggots or in similar forms; wood in chips or particles; sawdust and wood waste and scrap, whether or not agglomerated in logs, briquettes, pellets or similar forms
* * *
4421 Other articles of wood
* * *
0910 Ginger, saffron, turmeric (curcuma), thyme, bay leaves, curry and other spices
* * *
3503 Gelatin (including gelatin in rectangular (including square) sheets, whether or not surfaceworked or colored) and gelatin derivatives; isinglass; other glues of animal origin, excluding casein glues of heading 3501
HQ 951145 classified the wood chips at issue under heading 4421, as an article of wood. Upon review, we find that the wood chips are specifically provided for in heading 4401, HTSUS, which provides for “wood in chips or particles.” Accordingly, it is our position that the subject wood chips are classified in heading 4401, HTSUS. See New York Ruling Letter (NY) N040959, dated November 5, 2008. See also NY H89925, dated April 11, 2002.
Upon review, we also find that the mixture of herbs and spices at issue is classified in heading 0910, HTSUS, which provides for “ginger, saffron, turmeric (curcuma), thyme, bay leaves, curry and other spices.” This is consistent with Note 1(b) to Chapter 9, which provides that mixtures of the products of headings 0904 to 0910 are to be classified as follows: (b) mixtures of two or more of the products of different headings are to be classified in heading 0910. Moreover, we also find that the gelatin base is classified in heading 3503, HTSUS, which provides for “gelatin (including gelatin in rectangular (including square) sheets, whether or not surfaceworked or colored) and gelatin derivatives; isinglass; other glues of animal origin, excluding casein glues of heading 3501.”
As discussed above, the subject merchandise is composed of a mixture of wood shavings, herbs and spices in a gelatin base. In this regard, GRI 2(b) states, in pertinent part, that the classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3.
GRI 3 states that, when goods are prima facie classifiable under two or more headings, classification shall be effected as follows:
(a) ...when two or more headings each refer to
part only of the materials or substances
contained in mixed or composite goods…
those headings are to be regarded as
equally specific in relation to those goods,
even if one of them gives a more complete
or precise description of the goods.
(b) Mixtures, composite goods consisting of
different materials or made up of different components,...which cannot be classified by
reference to 3(a), shall be classified as if
they consisted of the material or component
which gives them their essential character,
insofar as this criterion is applicable.
(c) When goods cannot be classified by reference
to 3(a) or 3(b), they shall be classified under
the heading which occurs last in numerical order
among those which equally merit consideration.
Inasmuch as the instant merchandise qualifies as a composite good with separable components (wood chips, mixture of herbs, spices and gelatin base), it must be classified accordingly. If imported alone, the wood chips would be classified under heading 4401, HTSUS. The mixture of herbs and spices, if imported separately, would be classified under heading 0910, HTSUS. Finally, the gelatin base, if imported separately, would be classified under heading 3503, HTSUS.
As the instant merchandise is a composite good, we must apply GRI 3(b). Under GRI 3(b), the merchandise must be classified as if it consisted of the component which gives the merchandise its essential character. The term "essential character" is not defined within the HTSUS, GRIs or ENs. However, EN VIII to GRI 3(b) gives guidance, stating that: “[T]he factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the good.”
In the instant case, the role of the gelatin base in relation to the use of the subject merchandise is not significant. Without the gelatin, which would serve no essential function if used alone, the herbs and the spices, together with the wood chips, would serve the essential purpose of the subject merchandise. Since the herbs and the spices, as well as the wood chips, provide flavoring, which is the primary purpose, we cannot say which one of these products gives the subject merchandise its essential character. Therefore, we must next apply GRI 3(c), which provides as follows: “When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.” Since the wood chips are classified under heading 4401, HTSUS, which occurs last in numerical order, we find that the subject merchandise should also be classified under this heading.
HOLDING:
By application of GRI 3(c), we find that the subject merchandise is classified under heading 4401, HTSUS. Specifically, it is classified in subheading 4401.39.40, HTSUS, which provides for “Fuel wood, in logs, in billets, in twigs, in faggots or in similar forms; wood in chips or particles; sawdust and wood waste and scrap, whether or not agglomerated in logs, briquettes, pellets or similar forms: Sawdust and wood waste and scrap, whether or not agglomerated in logs, briquettes, pellets or similar forms: Other: Other.” The 2015 column one, general rate of duty is free.
EFFECT ON OTHER RULINGS:
HQ 951145, dated May 28, 1992, is hereby REVOKED.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Joanne Roman Stump, Acting Director
Commercial and Trade Facilitation Division