H305436

March 16, 2020 HQ H305436 OT:RR:CTF:FTM HQ H305436 TSM CATEGORY: Classification TARIFF NO.: 1905.90.1049 Port Director Port of Los Angeles/Long Beach U.S. Customs & Border Protection 301 E. Ocean Blvd., Suite 1400 Long Beach, CA 90802 Attn: Gino Cerreta, Import Specialist Re: Application for Further Review of Protest No. 2704-13-101748; Classification of frozen spring rolls Dear Port Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 2704-13-101748, timely filed on September 4, 2013, on behalf of Ming Hong Trading Co., Inc. (“Protestant”), regarding the tariff classification of frozen spring rolls under the Harmonized Tariff Schedule of the United States (“HTSUS”).  FACTS: Protestant describes the merchandise at issue as follows: “The imported spring rolls are comprised of spring roll skins and their vegetable fillings. The spring roll skins are made of enriched wheat flour, water and salt, and their fillings are made of cabbage, green beans, carrots, mushrooms, onions, vermicelli, tofu bean curd, soybean oil, salt and spices. The spring rolls are manufactured by the following process: (1) The spring roll skin ingredients (wheat flour, water, and salt) are mixed in a stainless steel drum; (2) The dough is fed into injectors, which spray a layer of dough into a rotating baking drum that is heated to approximately 349 degrees Fahrenheit; (3) The dough bakes while the drum rotates; (4) The baked skin comes off the drum and is then cut into individual square pieces (at this point it is no longer dough); (5) The fillings are put onto the pliable skin and the skin is wrapped around the filling; and, (6) The spring rolls are frozen. The spring rolls are fully cooked and edible at the time of importation.” The subject merchandise covers seventeen entries entered between June 4, 2012 and July 10, 2012, under subheading 1905.40.00, HTSUS, which provides for “Bread, pastry, cakes, biscuits and other bakers’ wares, whether or not containing cocoa, communion wafers, empty capsules of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products: Rusks, toasted bread and similar toasted products.” The subject merchandise was liquidated on May 31, 2013, under subheading 1901.90.90, HTSUS, which provides for “Malt extract; food preparations of flour, groats, meal, starch or malt extract, not containing cocoa or containing less than 40 percent by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included; food preparations of goods of headings 0401 to 0404, not containing cocoa or containing less than 5 percent by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included: Other: Other: Other: Other: Other: Other.” Protestant claims that the subject merchandise should be classified under subheading 1905.90.10, HTSUS, which provides for “Bread, pastry, cakes, biscuits and other bakers’ wares, whether or not containing cocoa, communion wafers, empty capsules of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products: Other: Bread, pastry, cakes, biscuits and similar baked products, and puddings, whether or not containing chocolate, fruit, nuts or confectionery.” In support of its claim, Protestant argues, in relevant part, as follows: While subheading 1901.90.90, HTSUS, is a non-specific residual or basket provision, subheading 1905.90.10, HTSUS, describes the imported product much more specifically. Further, “fully or partially cooked wares,” the latter requiring further cooking before consumption, are expressly precluded from classification under heading 1901, HTSUS, and are expressly provided for under heading 1905, HTSUS. Heading 1901, HTSUS, is more appropriate for uncooked bakers’ wares, not fully cooked or partially cooked bakers’ wares. The spring rolls are fully cooked and edible prior to importation. If the spring rolls at issue are considered bread (or similar baked products), then they are classified under subheading 1905.90.10, HTSUS. In Sabritas, S.A. de C.V. v. United States, 998 F. Supp. 1123 (CIT 1998), the Court of International Trade (“CIT”) determined that the taco shells are classified as “bread” under 1905.90.10, HTSUS, for the following reasons: (i) 1905.90.10, HTSUS, is an eo nomine provision that includes all forms of bread; (ii) the taco shells met the common and commercial meaning of bread, defined as “one of the world’s basic foods, made from flour and water, often with the addition of yeast, salt and other ingredients”; (iii) the common and commercial meaning of bread includes bread that is flat; (iv) bread may be “oven baked, grilled, fried, steamed, or even baked in hot sand”; (v) the fact that the bread is fried did not undo the baking process; (vi) although tortillas can be eaten as is, they are more often used to contain meats, vegetables, etc. and then consumed like a “sandwich.” Based on the Sabritas case, the spring rolls at issue are classified under subheading 1905.90.10, HTSUS, because it includes all forms of bread, including spring roll skins, which are an Asian “bread” made of wheat flour, water and salt. Like taco shells, the spring rolls are ethnic bread that is baked and edible thereafter. Like tacos or burritos, the spring roll skins are wrapped around vegetables to be eaten as a sandwich. The suggestion that they be fried is so that they might have a crispy and flavorful texture. The fact that the spring rolls contain vegetables does not preclude classification under 1905, HTSUS, because it is an eo nomine provision providing for all bread products, and because the ENs to 1905 provide for bakers’ wares with fruit, meat, cheeses, nuts, vegetables, etc. For example, in New York Ruling Letter (“NY”) M87185, dated November 8, 2006, CBP classified “spinach and chicken cones” which were cooked dough products, filled with spinach, onion, chicken, cheese, etc., under subheading 1905.90.1041, HTSUSA. Since the spring rolls are frozen and are not a sweet bread, they are classified under subheading 1905.90.10, HTSUS. This classification is similar to NY C85711, dated April 14, 1998, and DD 804118, dated December 1, 1994. These rulings involve bread articles enclosed around vegetables, meats, cheeses, etc., but the bread is what provides the character of each of these articles. CBP relies inter alia on NY H89869, dated April 15, 2002, to claim that the spring rolls are not classified under heading 1905, HTSUS. However, NY H89869 pertained to the tariff classification of egg rolls, and spring rolls and egg rolls are distinct products. The important distinction between spring rolls and egg rolls in NY H89869 is that the egg rolls were imported uncooked and, therefore, are not baked or heated at all. Further, the egg rolls in that ruling were fried, not baked. The spring rolls at issue are fully cooked through baking prior to importation, are edible at the time of importation, and are only recommended to be fried for additional flavor and crunchy texture. Protestant subsequently filed a supplemental argument, stating that NY N303457, dated April 2, 2019, supports its claim that the spring rolls at issue are classified under subheading 1905.90.10, HTSUS. That ruling concerns certain frozen banana caramel sticky rice spring rolls, containing approximately 22 percent wheat flour, 18 percent glutinous rice, 17 percent bananas, 14 percent water, 11 percent coconut cream, 8 percent sugar, 5 percent sunflower oil, 3 percent wheat starch, 1.5 percent lime and a trace amount of salt. The product is par-baked and frozen, then packed. Before consumption, heating instructions recommend baking the product for 10 - 12 minutes in an oven or for 25 seconds per roll in a microwave. CBP classified the spring rolls at issue in NY N303457 under subheading 1905.90.10, HTSUS. Protestant also noted that while the spring rolls in NY N303457 are only partially baked before being f

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 first 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. 2704-13-101748 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 C85711, dated April 14, 1998, NY M87185, dated November 8, 2006, and DD 804118, dated December 1, 1994. Further review is also properly accorded to Protestant pursuant to 19 C.F.R. §174.24(b) because Protestant alleges that the decision against which the protest was filed involves questions of law or fact which have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts. 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 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. The 2012 HTSUS provisions under consideration are as follows: 1901 Malt extract; food preparations of flour, groats, meal, starch or malt extract, not containing cocoa or containing less than 40 percent by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included; food prep