H295133

HQ H295133 April 29, 2020 OT:RR:CTF:FTM H295133 TSM CATEGORY: Classification TARIFF NO.: 2008.99.90 Port Director Port of Newark 1210 Corbin Street Elizabeth, NJ 07201 Attn: Michelle Akalski, Import Specialist Re: Application for Further Review of Protest No. 4601-17-103516; Tariff Classification of seaweed from China. Dear Port Director: The following is our decision with respect to the Application for Further Review of Protest No. 4601-17-103516, timely filed by Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP on November 28, 2017, on behalf of IKKO International Trading LLC (hereinafter “IKKO International” or “Protestant”), regarding the tariff classification of seaweed under the Harmonized Tariff Schedule of the United States (“HTSUS”). FACTS: The seaweed at issue is described by the Protestant as follows: “The sea laver (seaweed/nori) is produced by drying edible, raw seaweed. The moisture content in the seaweed is reduced in a drying machine. In the drying machine, the seaweed is brought to a surface temperature of 50-60 degrees Celsius by means of low-temperature infrared rays.” Moreover, IKKO International states that the seaweed at issue undergoes the following manufacturing processes: (1) inspection of raw materials; (2) supplying qualified raw materials [into machinery]; (3) sorting out defective raw materials; (4) automatic sorting for metal objects; (5) drying; (6) counting number of sheets; (7) automatic collection; (8) sorting out defective materials by factory worker; (9) cutting sheets to size; (10) stuffing sheets into inner package; (11) sealing inner package; (12) automatic sorting packs for metal objects; (13) stuffing package into cardboard carton; (14) storage for preservation; and, (15) loading and shipping. This is supported by a flowchart from the manufacturer, dated April 4, 2017, describing the production process employed. Furthermore, on January 10, 2019, Protestant provided a letter from the producer of the nori, which clarified that in order to reduce the moisture content to about 5%, the seaweed sheets are initially placed on “shade mats” for air drying. In addition, the manufacturer states that the seaweed is dried in an infrared ceramic drying machine to reduce the moisture content of the seaweed, but not below the level of above 5% to be suitable for use in restaurants. The subject merchandise covers nine different entries, entered between July 6, 2016 and June 13, 2017, under subheading 1212.21.00, 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: Seaweeds and other algae: Fit for human consumption.” The subject entries were liquidated between August 4, 2017 and September 8, 2017, under 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.”  In its Protest, dated November 28, 2017, IKKO International argued that the subject merchandise was classified under subheading 1212.21.00, HTSUS, as entered. Protestant argued, in relevant part, as follows: CBP’s rate advances of the subject seaweed were inconsistent with a previous decision concerning the same merchandise. In 2010, U.S. Customs and Border Protection (“CBP”) raised the same issue in a CF-29, with regard to the identical merchandise (a copy of the CF-29 is attached as Exhibit B). Upon review of the submission in response to that CF-29, containing materially the same information as the subject Protest, CBP concluded that seaweed materially identical to the seaweed at issue in this Protest is classified under subheading 1212.20.00, HTSUS. The Nori items covered by the subject entries were essentially produced by drying edible, raw seaweed, using the manufacturing processes as described above. Included as Exhibit F is a letter from the manufacturer, providing further details regarding the seaweed drying process. Specifically, the letter states that the seaweed at issue is brought to a surface temperature of approximately 50-60 degrees Celsius, by means of low-temperature infrared rays in the drying machine. This letter was further amended to state that the seaweed was first air dried and then further dried in an infrared ceramic drying machine. CBP has drawn a distinction between “dried” seaweed and “roasted” seaweed. In New York Ruling Letter (“NY”) 810717, dated June 5, 1995, CBP considered two seaweed products. One product was processed in an electric drying machine which removed moisture from the seaweed at a temperature of 70 degrees Celsius. The second product involved dried seaweed that was “roasted” at 80 degrees Celsius. The “dried” seaweed was classified under subheading 1212.20.00, HTSUS, and the “roasted” seaweed was classified under subheading 2008.99.90, HTSUS. CBP’s prior rulings have applied the term “dried” to cooking processes below 80 degrees Celsius and “roasting” to cooking processes over 80 degrees Celsius, in NY N275150 (garlic), NY N050326 (corn), NY N016488 (macadamia nuts), NY G83395 (duck), NY F83482 (hemp seeds). In NY 810717, seaweed dried at 70 degrees Celsius was classified in Chapter 12, HTSUS, while dried roasted seaweed (first dried in a drying machine at 70 degrees Celsius and subsequently roasted in a toasting machine at 80 degrees Celsius) was classified in Chapter 20, HTSUS. CBP has not previously considered heating to 50-60 degrees Celsius to be roasting. Therefore, the subject merchandise should not be considered “roasted.” It is more similar to the dried product at issue in NY 810717, and should therefore also be classified under subheading 1212.21.00, HTSUS, especially since it was dried at an even lower temperature. Note 5 to Chapter 12 and Explanatory Notes to heading 1212, HTSUS, also support classification of the seaweed at issue in heading 1212, HTSUS. The Customs Courts have held that “Nori” with no added ingredients is dried seaweed that is classified as edible seaweed and not as a food preparation. See United States v. Furuya & Co., 1910 U.S. App. LEXIS 5266, 176 F. 480; United States v. Furuya & Co., 7 Ct. Cust. 495, 1917 Ct. Cust. LEXIS 33, T.D. 37109. The record also contains IKKO International’s response to CBP’s Request for Information (CBP form 28), issued with regard to one of the entries at issue in this Protest. In the response, IKKO International stated that the seaweed at issue was laboratory tested, and that the tested samples showed 6.12%, 5.99%, 5.17% and 5.14% moisture levels prior to undergoing processing in an infrared ceramic drying machine, and 2.68%, 2.63%, 2.42% and 2.33% following such processing. Exhibit D to the response contains copies of the laboratory tests confirming these moisture levels. In addition, the record contains copies of Health Certificates, submitted by IKKO International as part of the entry documentation, referring to the merchandise at issue as “roasted seaweed.” ISSUE: Whether the seaweed at issue is classified under heading 1212, HTSUS, as “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,” or under heading 2008, 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 e

Initially, we note that the 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 of the entries. (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. 4601-2017-102814 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 NY 810717, dated June 5, 1995, NY N275150, dated December 12, 2016, NY N050326, dated February 6, 2009, NY N016488, dated September 11, 2007, NY G83395, dated October 20, 2000 and NY F83482, dated March 1, 2000. 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 2016-2017 HTSUS provisions under consideration are as follows: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* * *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* * *Note 5 to Chapter 12, HTSUS, provides as follows:For the purposes of heading 1212, the term "seaweeds and other algae" does