H325964

HQ H325964 November 17, 2022 OT:RR:CTF:FTM H325964 TSM CATEGORY: Classification TARIFF NO.: 1904.90.01 Center Director U.S. Customs and Border Protection Agriculture and Prepared Products Center of Excellence and Expertise 6601 N.W. 25 St., Suite 261 Miami, Florida 33122 Attn: Cynthia Michaud, Import Specialist Re: Application for Further Review of Protest No. 1803-22-102342; Tariff Classification of Frozen Risottos Dear Center Director: The following is our decision with respect to the Application for Further Review of Protest No. 1803-22-102342, timely filed by Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP on February 8, 2022, on behalf of [ ] (hereinafter “Protestant”), regarding the tariff classification of certain frozen risottos under the Harmonized Tariff Schedule of the United States (“HTSUS”). A teleconference was held with the Protestant’s counsel on November 2, 2022. Protestant has requested that the company’s name (Protestant’s name) be treated as confidential. Inasmuch as the request conforms to the requirements of 19 C.F.R. § 177.2(b)(7), Protestant’s request for confidentiality is approved. The information contained within brackets in this decision will not be released to the public and will be withheld from published versions of this decision. FACTS: At issue are three varieties of frozen risottos, described as asparagus risotto, mushroom risotto, and spelt risotto. The Protestant states that “[t]he products contain only par cooked, or partially cooked grain, and the consumer must cook the products on the stove or in the microwave before they can be consumed.” Specifically, the cooking instructions found on the product labels instruct the consumer to cook the products on the stove top as follows: the asparagus risotto over medium heat for 2 minutes, the spelt risotto over medium heat for 6 to 7 minutes, and the mushroom risotto on high heat for 6 to 7 minutes. Images of the packaging for each of the risottos, as well as information concerning the percentages of ingredients contained in each of the risottos, were provided by the Protestant as exhibits. In addition, the Protestant provided a signed statement from the manufacturer, certifying that the three risottos at issue are labeled as the mushroom risotto, asparagus risotto, and spelt risotto, and providing additional details about the products. Consistent with the information provided, the risottos contain the following ingredients: The asparagus risotto: precooked rice 49.34%, rehydrated whey 19.87%, asparagus 15.44%, cream 2.65%, onion 2.65%, water 2.48%, hard grating cheese 2.21%, sunflower seed oil 1.10%, wheat flour 1.10%, butter 0.88%, eggs 0.66%, celery 0.66%, tapioca starch 0.44%, vegetable broth 0.28%, garlic 0.11%, salt 0.11%, white pepper 0.003%, and nutmeg 0.003%. The mushroom risotto: precooked rice 55.07%, champignon mushrooms 15.89%, water 9.16%, milk 8.42%, cream 3.82%, porcini mushrooms 2.33%, sunflower seed oil 1.57%, wheat flour 1.27%, extra virgin olive oil 0.72%, white wine 0.51%, parsley 0.47%, onion 0.42%, garlic 0.04%, salt 0.22%, natural extract of porcini mushroom 0.04%, white pepper 0.02%, bay leaf 0.01%, and nutmeg 0.002%. The spelt risotto: precooked spelt 49.34%, skimmed milk 11.16%, pumpkin 6.65%, zucchini 5.51%, turnip greens 5.51%, chickpeas 5.29%, provola cheese 5.24%, water 5.00%, carrot 1.99%, hard grating cheese 1.58%, wheat flour 0.97%, sunflower seed oil 0.68%, butter 0.44%, salt 0.28%, onion 0.19%, wheat starch 0.14%, garlic 0.01%, yeast extract 0.01%, cilantro 0.008%, rosemary 0.006%, white pepper 0.004%, and nutmeg 0.001%. The subject merchandise covers one entry, entered on November 9, 2020, under subheading 1902.30.00, HTSUS, which provides for “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: Other pasta.” The subject entry was liquidated on October 29, 2021, under subheading 1904.90.01, HTSUS, which provides for “Prepared foods obtained by the swelling or roasting of cereals or cereal products (for example, cornflakes); cereals (other than corn (maize)) in grain form or in the form of flakes or other worked grains (except flour, groats and meal), pre-cooked or otherwise prepared, not elsewhere specified or included: Other.” In its Protest, dated February 8, 2022, Protestant argued that the merchandise at issue is classified in subheading 2106.90.98, HTSUS, which provided for “Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Other.” Specifically, Protestant argued the following: Explanatory Note (D) to heading 1904 excludes the frozen risottos at issue from classification in that heading, providing in relevant part that “[t]his group includes precooked or otherwise prepared cereals in grain form … for example, products consisting of precooked rice to which other ingredients such as vegetables or seasonings have been added, provided that these other ingredients do not alter the character of the products as rice preparations.” Emphasis added. In this regard, Protestant claimed that “the grains included in the subject risottos are only par-cooked” and therefore do “not meet the ‘pre-cooked’ rice standard.” The Protestant also claimed that “based on the ingredient percentages in the subject risottos, the grain content is significantly altered by the inclusion of vegetables” resulting in principally vegetable, rather than rice, dishes. The frozen risottos at issue are classified in heading 2106 consistent with Explanatory Note (A) to this heading, which provides in relevant part that “[p]rovided that they are not covered by any other heading of the Nomenclature, this heading covers [p]reparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk, etc.), for human consumption.” The Protestant claimed that because the vegetable risottos at issue require further preparation for human consumption and meet the guidelines of Explanatory Note (A) to heading 2106, they are classified in heading 2106, HTSUS. Classification of the frozen risottos at issue in subheading 1904.90.01, HTSUS, is inconsistent with CBP’s prior rulings, specifically with Headquarters Ruling Letter (“HQ”) 953651, dated June 16, 1993, and New York Ruling Letter (“NY”) G88476, dated March 29, 2001. ISSUE: What is the tariff classification of the subject frozen risottos? LAW AND ANALYSIS: Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification, applicable rate and amount of duties chargeable. The protest was timely filed on February 8, 2022, within 180 days of liquidation of the entries. See 19 U.S.C. § 1514(c)(3). Further review of protest no. 1803-22-102342 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 HQ 953651, dated June 16, 1993, and NY G88476, dated March 29, 2001. Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRI”). 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 GRI 2 through 6 may then be applied in order. The 2020 HTSUS provisions under consideration are as follows: 1904 Prepared foods obtained by the swelling or roasting of cereals or cereal products (for example, cornflakes); cereals (other than corn (maize)) in grain form or in the form of flakes or other worked grains (except flour, groats and meal), pre-cooked or otherwise prepared, not elsewhere specified or included: * * * 1904.90.01 Other * * * 210

Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification, applicable rate and amount of duties chargeable. The protest was timely filed on February 8, 2022, within 180 days of liquidation of the entries. See 19 U.S.C. § 1514(c)(3). Further review of protest no. 1803-22-102342 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 HQ 953651, dated June 16, 1993, and NY G88476, dated March 29, 2001. Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRI”).  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 GRI 2 through 6 may then be applied in order.  The 2020 HTSUS provisions under consideration are as follows: 1904 Prepared foods obtained by the swelling or roasting of cereals or cereal products (for example, cornflakes); cereals (other than corn (maize)) in grain form or in the form of flakes or other worked grains (except flour, groats and meal), pre-cooked or otherwise prepared, not elsewhere specified or included:* * *1904.90.01 Other* * *2106 Food preparations not elsewhere specified or included:* * *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. The 2017 EN to 19.04 provides in relevant part: