HQ H272093
CLA-2 OT:RR:CTF:FTM HQ H272093 TSM
Area Port Director
Baltimore Service Port
U.S. Customs and Border Protection
40 S Gay Street
Baltimore, MD 21202
Attn: Jeremy Jackson, Supervisory Import Specialist
RE: Internal Advice Request; Classification of Dried (Roasted) Seaweed, Thai Jasmine Rice, and Rice Cakes; US – Korea Free Trade Agreement.
Dear Port Director:
This is in response to your Request for Internal Advice, dated November 30, 2015, initiated by Rhee Bros., Inc. (“Rhee Bros.”), concerning the proper classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) and eligibility for preference of certain dried seaweed, Thai jasmine rice and rice cakes under the US – Korea Free Trade Agreement (UKFTA). The UKFTA eligibility issue will be addressed in a separate decision.
FACTS:
The subject merchandise consists of three different types of products. The first product is described by Rhee Bros. as dried seaweed, commonly used to make sushi, which undergoes two distinct processing operations. Rhee Bros. describes the processing operations as follows:
During the first operation, the fresh raw seaweed is rinsed, cut and cleaned, then mixed with water and placed in sheets, dried, stripped, selected and graded. During the second operation, the seaweed is placed on a drying line. The drying occurs naturally and without the aid of any machinery. Rather, the only machinery used at any time in the processing is stated to be for the cutting, counting, and packaging operations.
Entry documents and the manufacturers’ documents indicate that the seaweed at issue was labeled as “Yaki Sushi Nori Roasted Seaweed.” The CBP Laboratory was unable to determine if the seaweed at issue is roasted or dried. The CBP Laboratory report also indicates that the sample tested has been processed and features mechanical processing lines. The documents said to be from the Chinese supplier identify the seaweed as roasted. See also http://www.japanesecooking101.com/roasted-seaweed-sushi-nori/ (roasted seaweed is called Sushi Nori or Yaki Nori in Japanese). However, a Certificate of Ingredient identifies the ingredient of the “Roasted Seaweed” to be dried seaweed. In addition, although there are two identical processing flowcharts, one for “dried seaweed” and the other for “roasted seaweed,” neither one identifies any “roasting.” Moreover, the record also contains two additional processing charts, one for the primary seaweed processing stage and the other one for the secondary seaweed processing stage. Both charts show that the seaweed was dried and do not reference any roasting.
The second product, described by Rhee Bros. as Thai jasmine rice, according to the submitted Ingredient certificate, is comprised of 80% jasmine rice and 20% of long grain rice other than Thai Jasmine rice. See http://www.finecooking.com/article/guide-to-rice-varieties.
The third product is described by Rhee Bros. as rice cakes, described as being comprised of rice, wheat starch, and salt. All of the ingredients are steam cooked then dried in a refrigerator and preserved with ethyl alcohol.
Rhee Bros. sought classification guidance on the subject merchandise from the Port of Baltimore. The Port, citing a number of prior CBP rulings, suggested the merchandise be classified as follows:
Seaweed (concluding that it is roasted rather than dried seaweed) in heading 2008, HTSUS, and specifically subheading 2008.99.90, HTSUS, 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: Other, including mixtures other than those of subheading 2008.19: Other: Other: Other.” See HQ 952636, dated October 8, 1993.
Thai jasmine rice in heading 1006, HTSUS, and specifically in subheading 1006.30.9085, HTSUSA, which provides for “Rice: Semi-milled or wholly milled rice, whether or not polished or glazed: Other…Other: Mixtures of any of the above.”
Rice cakes in heading 1904, HTSUS, and specifically in subheading 1904.90.01, HTSUS, which provides for “Prepared foods obtained by the swelling or roasting of cereals or cereal products (for example, cornflakes); cereals (other than corn (maize)) in grain form or in the form of flakes or other worked grains (except flour, groats and meal), pre-cooked or otherwise prepared, not elsewhere specified or included: Other.”
Rhee Bros. sought this Internal Advice after disagreeing with the Port, arguing the following:
The seaweed at issue should be classified in subheading 1212.21.00, HTSUS, as dried, not roasted seaweed.
The Thai jasmine rice should be under subheading 1006.30.9055, HTSUSA, as “Rice: Semi-milled or wholly milled rice, whether or not polished or glazed: Other…Other: Long grain.”
The rice cakes are classified in heading 1904, HTSUS, and specifically in subheading 1904.10.00, HTSUS, which provides for “Prepared foods obtained by the swelling or roasting of cereals or cereal products (for example, cornflakes); cereals (other than corn (maize)) in grain form or in the form of flakes or other worked grains (except flour, groats and meal), pre-cooked or otherwise prepared, not elsewhere specified or included: Prepared foods obtained by the swelling or roasting of cereals or cereal products.”
ISSUE:
What is the classification of the seaweed, Thai jasmine rice, and rice cakes at issue under the HTSUS?
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.
The HTSUS provisions under consideration are as follows:
1006 Rice:
* * *
1006.30 Semi-milled or wholly milled rice, whether or not polished or glazed:
* * *
1006.30.90 Other
* * *
Other:
* * *
1006.30.9055 Long grain
* * *
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:
Seaweeds and other algae:
1212.21.0000 Fit for human consumption
* * *
1904 Prepared foods obtained by the swelling or roasting of cereals or cereal products (for example, cornflakes); cereals (other than corn (maize)) in grain form or in the form of flakes or other worked grains (except flour, groats and meal), pre-cooked or otherwise prepared, not elsewhere specified or included:
1904.10.00 Prepared foods obtained by the swelling or roasting of cereals or cereal products
* * *
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 addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
As referenced above, Rhee Bros. argues that the seaweed at issue is dried and not roasted and should be classified in heading 1212, HTSUS, as dried seaweed. As noted above, the CBP Laboratory was unable to conclude whether the seaweed at issue was roasted or dried. In addition, although some of the supporting documents are contradictory in that they describe the subject seaweed as both “roasted” and “dried,” we find that none of the processing flowcharts identify any roasting. Instead, the above-referenced processing flowcharts show that the seaweed was in fact dried. Accordingly, we conclude that it is classified under heading 1212, HTSUS, and specifically subheading 1212.21.0000, HTSUSA, 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: Seaweeds and other algae: Fit for human consumption.”
Thai jasmine rice is the second product under consideration. According to the record, the product is comprised of 80% jasmine rice and 20% long grain rice other than Jasmine rice. As CBP concluded in NY I81166, dated May 24, 2002, Jasmine rice is recognized as a variety of long grain rice. See NY I81166, dated May 24, 2002; See also http://www.finecooking.com/article/guide-to-rice-varieties. The other 20% of the mixture is other long grain rice. Because the product is singularly of a long grain variety, we find that it is classified under heading 1006, HTSUS, and specifically subheading 1006.30.9055, HTSUSA, which provides for “Rice: Semi-milled or wholly milled rice, whether or not polished or glazed: Other…Other: Long grain.”
The third product is rice cakes, comprised of rice, wheat starch, and salt. The product is not baked; rather, all of the ingredients are steam cooked, then dried in a refrigerator and preserved with ethyl alcohol. Rhee Bros. argues that the rice cakes at issue are classified under subheading 1904.10.00, HTSUS, which provides for prepared foods obtained by the swelling or roasting of cereals or cereal products. Upon review, we agree. In HQ 955885, dated December 16, 1996, CBP found that rice “swelled” within the meaning of subheading 1904.10, HTSUS, is puffed rice prepared by being subjected to pressure in a moist, heated chamber, and subsequently ejected into a cold atmosphere. We find that the rice cakes at issue are similarly produced by steaming and then drying in a refrigerator. Therefore, we conclude that the rice cakes at issue are classified under subheading 1904.10.00, HTSUS.
HOLDING:
By application of GRI 1, we conclude that the products at issue are classified as follows:
The seaweed at issue is classified under heading 1212, HTSUS, and subheading 1212.21.0000, HTSUSA, 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: Seaweeds and other algae: Fit for human consumption.” The 2017 column one, general rate of duty is Free.
The Thai jasmine rice at issue is classified under heading 1006, HTSUSA, and subheading 1006.30.9055, HTSUS, which provides for Rice: Semi-milled or wholly milled rice, whether or not polished or glazed: Other…Other: Long grain.” The 2017 column one, general rate of duty is 1.4?/kg.
The rice cakes at issue are classified under heading 1904, HTSUS, and subheading 1904.10.00, HTSUS, which provides for “Prepared foods obtained by the swelling or roasting of cereals or cereal products (for example, cornflakes); cereals (other than corn (maize)) in grain form or in the form of flakes or other worked grains (except flour, groats and meal), pre-cooked or otherwise prepared, not elsewhere specified or included: Prepared foods obtained by the swelling or roasting of cereals or cereal products.” The 2017 column one, general rate of duty is 1.1% ad valorem.
You are to mail this decision to the internal advice requester no later than 60 days from the date of the decision. At that time, the Office of 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