HQ H289781
CLA-2 OT:RR:CTF:FTM HQ H289781 TSM
Port Director
Port of Baltimore
U.S. Customs and Border Protection
40 South Gay Street
Baltimore, MD 21202
Attn: Kathleen Simpson, Import Specialist
Re: Protest and Application for Further Review No. 1303-17-100158; Classification of garlic products.
Dear Port Director:
The following is our decision regarding Protest and Application for Further Review No. 1303-17-100158, timely filed on May 31, 2017, on behalf of Lunong Ingredients LLC (hereinafter “Lunong” or “Protestant”) regarding the tariff classification of garlic products under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The garlic products at issue are stated to undergo the following manufacturing process: (1) garlic clove separation, (2) skin removal and first washing, (3) selection, (4) second washing and disinfection, (5) some removal and magnet, (6) slicing, (7) third washing, (8) centrifuge, (9) first heating in oven at greater than or equal to 95 degrees Celsius over four hours, (10) second heating in oven at greater than or equal to 95 degrees Celsius over two hours, (11) packing of semi-finished garlic flake, (12) hand-picking (13) addition of 2% calcium stearate (to prevent caking) and up to 10% garlic skin powder (to enhance the products use and aroma) (14) milling and screening, (15) metal detector, (16) weight & packing, (17) storage and (18) shipping. This is supported by the manufacturer’s processing chart and affidavit, dated February 12, 2018, certifying the production process employed.
The subject Protest covers fourteen entries, entered between March 4, 2016 and February 12, 2017, under 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 subject entries were liquidated between December 2, 2016 and May 12, 2017, under subheading 0712.90.40, HTSUS, which provides for “Dried vegetables, whole, cut, sliced, broken or in powder, but not further prepared: Other vegetables; mixtures of vegetables: Garlic.”
In the Protest, dated May 31, 2017, and supplemental argument, dated July 14, 2017, Lunong argued that the subject merchandise is classified under subheading 2005.99.97, HTSUS, as entered.
The record contains three CBP laboratory reports which, while indicating moisture level and optical index, do not conclude whether the garlic was processed beyond drying.
ISSUE:
Whether the garlic products at issue are classified under heading 0712, HTSUS, as “Dried vegetables, whole, cut, sliced, broken or in powder, but not further prepared,” or under heading 2005, HTSUS, as “Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006.”
LAW AND ANALYSIS:
Initially, we note that the matter protested 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 of the entry. (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. 1303-17-100158 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 (a) because Protestant alleges that the decision against which the Protest was filed is inconsistent with New York Ruling Letter (NY) N284131, dated April 6, 2017; NY N277893, dated December 28, 2016; NY N275150, dated December 12, 2016; NY N265996, dated July 9, 2015; NY N264652, dated June 5, 2015; NY N260871, dated February 9, 2015.
Classification under the HTSUS is determined 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 2016 and 2017 HTSUS provisions under consideration are as follows:
0712 Dried vegetables, whole, cut, sliced, broken or in powder, but not further prepared
* * *
2005 Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006
* * *
Note 3 to Chapter 7 provides as follows:
Heading 0712 covers all dried vegetables of the kinds falling in headings 0701 to 0711, other than:
(a) Dried leguminous vegetables, shelled (heading 0713);
(b) Sweet corn in the forms specified in headings 1102 to 1104;
(c) Flour, meal, powder, flakes, granules and pellets of potatoes (heading 1105);
(d) Flour, meal and powder of the dried leguminous vegetables of heading 0713 (heading 1106).
* * *
Note 1 to Chapter 20 provides, in relevant part, the following:
This chapter does not cover:
Vegetables, fruit or nuts, prepared or preserved by the processes specified in chapter 7, 8 or 11
* * *
Note 3 to Chapter 20 provides as follows:
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 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).
* * *
The General EN to Chapter 7 provides, in pertinent part, the following:
This Chapter covers vegetables, including the products listed in Note 2 to the Chapter, whether fresh, chilled, frozen (uncooked or cooked by steaming or boiling in water), provisionally preserved or dried (including dehydrated, evaporated or freeze-dried). It should be noted that some of these products when dried and powdered are sometimes used as flavouring materials but nevertheless remain classified in heading 07.12.
* * *
Vegetables not presented in a state covered by any heading of this Chapter are classified in Chapter 11 or Section IV. For example, flour, meal and powder of dried leguminous vegetables and flour, meal, powder, flakes, granules and pellets of potatoes are classified in Chapter 11, and vegetables prepared or preserved by any process not provided for in this Chapter fall in Chapter 20.
* * *
The EN to heading 07.12 provides, in pertinent part, the following:
This heading covers vegetables of headings 07.01 to 07.09 which have been dried (including dehydrated, evaporated or freeze-dried) i.e., with their natural water content removed by various processes. The principal kinds of vegetables treated in this way are potatoes, onions, mushrooms, wood ears (Auricularia spp.), jelly fungi (Tremella spp.), truffles, carrots, cabbage and spinach. They are usually prepared in strips or slices, either of one variety or mixed (julienne).
The heading also covers dried vegetables, broken or powdered, such as asparagus, cauliflower, parsley, chervil, onion, garlic, celery, generally used either as flavouring materials or in the preparation of soups.
* * *
The EN to heading 20.05 provides, 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).
These products, whole, in pieces or crushed, may be preserved in water, in tomato sauce or with other ingredients ready for immediate consumption. They may also be homogenised or mixed together (salads).
* * *
Upon review of the record and supporting documentation provided by the Protestant, we found that the garlic products at issue were twice subjected to heating in an oven, first at a temperature greater than or equal to 95 degrees Celsius for over four hours, and subsequently at a temperature greater than or equal to 95 degrees Celsius for over two hours. In this regard, we note that online research shows that the suggested temperature for oven garlic and other food drying is between 140 and 170 degrees Fahrenheit, which corresponds to between 60 and 76 degrees Celsius.
In NY N275150, dated December 12, 2016, garlic products processed by being twice heated in an oven (first dried at 60 to 80 degrees Celsius for four to six hours, and then roasted at 100 to 120 degrees Celsius for four to six hours), were classified under heading 2005, HTSUS, as “Other vegetables prepared or preserved.” Similarly, in NY N264652, dated June 5, 2015, garlic products also processed by being twice heated in an oven (first dried at 50 to 60 degrees Celsius for five to six hours, and then toasted at 40 to 50 degrees Celsius for three to four hours), were also classified under heading 2005, HTSUS, as “Other vegetables prepared or preserved.”
The protestant submitted three CBP laboratory reports for multiple samples of garlic products. However, none of the samples tested were from the entries subject to the instant protest. The CBP laboratory was guided by an industry-based method, which was formulated by ADOGA, the American Dehydrated Onion and Garlic Association, in the “Official Standards and Methods” guide, 14th edition, dated April 2005. According to the ADOGA manual, the two relevant factors to be considered are moisture content and optical index. According to the manual, the optical index maximum for “dehydrated garlic” is 150-200, and the optical index range for “toasted garlic” is 1000 +/- 500. With regard to moisture content, the ADOGA manual provides that toasted garlic products are allowed a maximum of 5.0% moisture and all other garlic products a maximum of 6.8%. The CBP laboratory reports indicate that the optical index range for the products tested is between 311 and 372, and the moisture content range for the products at issue is between 3.3% and 4.9%.
The protestant asserts that the garlic products at issue were subjected to an additional manufacturing process beyond simple drying (i.e., removal of the natural water content) provided for in heading 0712, HTSUS. According to the record, after being heated in an oven at a temperature greater than or equal to 95 degrees Celsius for over four hours, the garlic products at issue were subsequently heated at a temperature greater than or equal to 95 degrees Celsius for over two additional hours. We note that although the record does not indicate that the products were toasted or roasted, it nevertheless supports a finding that they were processed beyond drying based on the following: (1) the products at issue were twice heated in an oven at temperatures significantly higher than the suggested temperature for oven garlic and other food drying, which is between 140 and 170 degrees Fahrenheit (corresponding to between 60 and 76 degrees Celsius); and (2) the above-discussed ADOGA ranges correspond to those of products processed beyond simple drying, since the optical index range is between 311 and 372, falling right between the suggested levels for dehydrated (150-200) and toasted (500 minimum), and the moisture content range is between 3.3% and 4.9%, which is within the ADOGA allowed maximum level of 5% for toasted garlic.
With regard to the 10% garlic skin powder and 2% calcium stearate, which were added to the garlic, we find that these ingredients do not affect the tariff classification of the garlic products at issue. There is no evidence in the record that manufacturing done to the garlic skins substantially transforms the products from garlic to new products for classification purposes. Regarding the 2% calcium stearate, this ingredient is one of a number of anti-caking agents usually added to powdered substances to increase the flow, and reduce moisture. This ingredient also does not transform the garlic products to new products for classification purposes.
Based on the foregoing, we conclude that the garlic products at issue 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.”
HOLDING:
By application of GRIs 1 and 6, the subject garlic products are classified 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 2016 and 2017 column one general rate of duty is 11.2%.
You are instructed to ALLOW 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 of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website 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