H316296

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H316296 August 3, 2021 OT:RR:CTF:FTM H316296 MD CATEGORY: Classification TARIFF NO.: 1902.19.20 Center Director Agriculture & Prepared Products CEE U.S. Customs and Border Protection 555 Battery Street San Francisco, CA 94111 ATTN: Cheryl A. Lien, Import Specialist RE: Application for Further Review of Protest No. 2704-20-149105; Classification of “Gluten-Free Pasta” Dear Center Director, The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 2704-20-149105, timely filed by Sandler, Travis, and Rosenberg, P.A., on December 17, 2020, on behalf of their client, Ethical Brands Inc. (“Ethical Brands” or “Protestant”), regarding U.S. Customs and Border Protection (“CBP”) tariff classification of “gluten-free pasta,” under subheading 2008.99.6100, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). FACTS: The subject “gluten-free pasta” is described as “uncooked, dried pastas of bean (legume) flour.” Specifically, the five varieties of “gluten-free pasta” are labelled: 1) “Organic Edamame & Mung Bean Fettucine;” 2) “Organic Black Bean Spaghetti;” 3) “Organic Edamame Spaghetti;” 4) “Organic Edamame & Spirulina Spaghetti;” and 5) “Organic Black Bean & Sesame Fettucine.” The component ingredients of the “gluten-free pasta” consist of various vegetable flours and water. Specifically, the documents provided for our review indicate that the Organic Edamame & Mung Bean Fettucine is made from “[o]rganic edamame bean flour (green soybeans),” “[o]rganic mung bean flour,” and water; the Organic Black Bean Spaghetti is made from “[o]rganic black bean flour (black soybeans)” and water; the Organic Edamame Spaghetti is made from “[o]rganic edamame bean flour (green soybeans)” and water; the Organic Edamame & Spirulina Spaghetti is made from “[o]rganic edamame bean flour,” “[o]rganic spirulina powder,” and water; and the Organic Black Bean & Sesame Fettucine is made from “[o]rganic black bean flour (black soybeans),” “[o]rganic black sesame seed flour,” and water. The processing of the “gluten-free pasta” occurs in the People’s Republic of China and is described as “processing the beans into flour,” “processing the flour into dough,” “and further processing the dough into pasta” by means of extrusion, drying, cooling, and cutting. The subject merchandise was entered between November 2019 and January 2020 under subheading 1902.19.2090, HTSUSA, which provides for “Pasta, whether or not cooked of stuffed (with meat or other substances) or otherwise prepared, such as spaghetti, macaroni, noodles, lasagna, gnocchi, ravioli, cannelloni; couscous, whether or not prepared: Uncooked pasta, not stuffed or otherwise prepared: Other: Exclusively pasta: Product of a country other than an EU country.” The general, column one, duty rate was free. On April 17, 2020, CBP issued a Request for Information (“CBP Form 28”) concerning the classification of the subject merchandise under subheading 1902.19.2090, HTSUSA. Specifically, CBP requested the ingredient breakdown and processing steps of the Edamame Mung Bean Fettucine and Black Bean Spaghetti from Protestant. Protestant responded that the Edamame Mung Bean Fettucine was “composed of 95% edamame flour and 5% mung bean flour,” whereas the Black Bean Spaghetti was “100% composed of black bean flour.” Protestant also provided that a third product, described as “edamame pasta, was 100% composed of edamame flour.” CBP was also furnished with the “ingredient lists, product specification sheets[,] and production flowcharts for each of the products at issue.” On September 14, 2020, CBP issued a Proposed Notice of Action (“CBP Form 29”) concerning the aforementioned entries of subject merchandise. Within the CBP Form 29, CBP stated that the products at-issue “should be properly classified under HTS# 2008.99.6100 which is dutiable at 3.8%.” Specifically, subheading 2008.99.6100, HTSUSA, 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: Soybeans.” ISSUE: What is the proper tariff classification for the merchandise? 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. (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)). 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 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, GRIs 2 through 6 may then be applied in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to GRIs 1 through 5. The HTSUS provisions under consideration are as follows: 1902 Pasta, whether or not cooked or stuffed (with meat or other substances) or otherwise prepared, such as spaghetti, macaroni, noodles, lasagna, gnocchi, ravioli, cannelloni; couscous, whether or not prepared: Uncooked pasta, not stuffed or otherwise prepared: 1902.19 Other: 1902.19.20 Exclusively pasta: 1902.19.2090 Product of a country other than an EU country. * * * 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: Other, including mixtures other than those of subheading 2008.19: 2008.99 Other: 2008.99.6100 Soybeans. * * * The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the “official interpretation of the Harmonized System” at the international level. See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). 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 id. In applicable part, the ENs for heading 1902 read as follows: The pasta of this heading are unfermented products made from semolinas or flours of wheat, maize, rice, potatoes, etc. These semolinas or flours (or intermixtures thereof) are first mixed with water and kneaded into a dough which may also incorporate other ingredients (e.g. very finely chopped vegetables, vegetable juice or purees, eggs, milk, gluten, diastases, vitamins, colouring matter, flavouring). The doughs are then formed (e.g. by extrusion and cutting, by rolling and cutting, by pressing, by moulding or by agglomeration in rotating drums) into specific predetermined shapes (such as tubes, strips, filaments, cockleshells, beads, granules, stars, elbow-bends, letters […] These forms often given rise to the names of the finished products (e.g. macaroni, tagliatelle, spaghetti, noodles). The products are usually dried before marketing to facilitate transport, storage, and conservation; in this dried form, they are brittle[…] * * * The relevant ENs for Heading 2008 include: This heading co

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. (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)). 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 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, GRIs 2 through 6 may then be applied in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to GRIs 1 through 5.The HTSUS provisions under consideration are as follows:1902 Pasta, whether or not cooked or stuffed (with meat or other substances) or otherwise prepared, such as spaghetti, macaroni, noodles, lasagna, gnocchi, ravioli, cannelloni; couscous, whether or not prepared: Uncooked pasta, not stuffed or otherwise prepared:1902.19 Other:1902.19.20 Exclusively pasta:1902.19.2090 Product of a country other than an EU country. * * *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: Other, inclu