H312097

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H312097 June 14, 2021 OT:RR:CTF:FTM H312097 MD CATEGORY: Classification TARIFF NO.: 1212.21.0000 Center Director CEE - Agriculture and Prepared Products U.S. Customs and Border Protection One World Trade Center, Suite 50-200 New York City, New York 10007 Re: Application for Further Review of Protest No. 1001-19-100242; Classification of Calcified Seaweed Powders Dear Center Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 1001-19-100242, timely filed by Sandler, Travis, & Rosenberg P.A., on behalf of Stauber Performance Ingredients (“Stauber” or “Protestant”), regarding U.S. Customs and Border Protection (“CBP”) tariff classification of calcified seaweed powders under subheading 2106.90.9898, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). On March 17, 2021, a conference was held to discuss Protestant’s case and the information therein. During this conference, we requested supplemental information to assist in our ultimate determination. This information was furnished on March 17, 2021 and was considered alongside Protestant’s initial AFR submission. FACTS: The calcified seaweed powders at issue (Aquamin F and Lithothanmium Powder) are 100% pure seaweed that has been heat-treated, dried, and filtered by physical processes to remove impurities and ground. According to the Protestant, the result is a dried, ground seaweed. Aquamin F and Lithothanmium Powder are the same product. Lithothamnion powder is essentially the common name for Aquamin F though there are slight differences in their production flow. They are both 100% calcified seaweed powders, a natural mineral source produced from calcareous marine algae (Lithothamnion spp.) and are sold for use in the fortification of food, beverage and supplement products, and to promote bone, joint, and digestive health. The seaweed is harvested from the North Atlantic seabed. Aquamin F is manufactured in Microferm Ltd, UK. The merchandise was entered under subheading 1212.21.0000, HTSUSA, as “seaweeds and other algae… whether or not ground… used primarily for human consumption” with a free duty rate. CBP subsequently reclassified the calcified seaweed powders at issue under subheading 2106.90.9898, HTSUSA, as other food preparations. Protestant claims that the classification under subheading 1212.21.0000, HTSUSA, was proper since the processing does not exceed the scope of heading 1212, HTSUS, which covers dried, ground seaweed. ISSUE: What is the proper 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 2018 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: Seaweeds and other algae: * * * 1212.21.0000 Fit for Human Consumption * * * 2106 Food preparations not elsewhere specified or included: * * * 2106.90 Other: * * * Other: * * * Other: * * * Other: * * * Other: * * * 2106.90.98 Other: * * * 2106.90.9898 Other: * * * 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 1212 read as follows: This heading covers all seaweeds and other algae, whether or not edible. They may be fresh, chilled, frozen, dried or ground. Seaweeds and other algae are used for various purposes (e.g., pharmaceutical products, cosmetics, human consumption, animal feeding, fertilisers). * * * In applicable part, the ENs for Heading 2106 read as follows: This heading includes, inter alia: (16) Preparations, often referred to as food supplements or dietary supplements, consisting of, or based on, one or more vitamins, minerals, amino acids, concentrates, extracts, isolates or the like of substances found within foods, or synthetic versions of such substances, put up as a supplement to the normal diet. It includes such products whether or not also containing sweeteners, colours, flavours, odoriferous substances, carriers, fillers, stabilisers or other technical aids. Such products are often put up in packaging with indications that they maintain general health or well-being, improve athletic performance, prevent nutritional deficiencies or correct sub-optimal levels of nutrients. * * * Protestant contends that both “Aquamin F” and “Lithothanmium” powders are 100% calcified seaweed powder. Specifically, Protestant notes that “Lithothanmium” is “essentially the common name for Aquamin F”, despite “slight differences in their production flow”. Turning to an analysis of these production lines, the chemical composition of each product, and their intended purpose, we agree with Protestant’s contention that “Aquamin F” and “Lithothanmium” powders are fundamentally identical. As supplied by Protestant, the production flow of “Aquamin F” powder is as follows. First, calcified seaweed (of the Lithothanmion genus) is harvested from the seabed. This seaweed is subject to preliminary washing and screening before an hour-long pasteurization process in a mixture of water and hydrogen peroxide. The seaweed is then dried in a rotary drum for twenty minutes before being milled, sieved, and bagged under sterile conditions. Between the processes of milling, sieving, and bagging, rare earth magnets are utilized by the manufacturer. While this portion of the manufacturing process is not described in-depth by Protestant, our research indicates that the use of magnets within the manufacture of seaweed powder(s) is to “remove eventual metallic impurities” and is relatively common within the industry. The production flow of “Liththanmium” powder is virtually identical to that of “Aquamin F” powder. Calcified seaweed of the Lithothanmion genus is harvested from the seabed and is subject to preliminary washing and screening. Afterwards, the seaweed undergoes additional washing in deionized water for two hours before being dried in a rotary drier. After drying, the seaweed is milled, sieved,

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 2018 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: Seaweeds and other algae: * * *1212.21.0000 Fit for Human Consumption * * *2106 Food preparations not elsewhere specified or included:* * *2106.90 Other:* * * Other:* * * Other:* * *Other:* * *Other:* * *2106.90.98 Other:* * *21