CLA-02 RR:CR:GC 965994ptl
RE: IA 02/106; Dry Mung Beans
Service Port Director
U.S. Customs Service
6747 Engle Road
Middleburg Heights, OH 44130
Dear Port Director:
This is in response to your Memorandum of August 28, 2002, forwarding a Request for Internal Advice submitted by Caudill Seed Company regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of dry, whole, mung beans. We regret the delay.
New York Ruling Letter (NY) 813882, dated March 18, 1991, was issued to Caudill Seed Company regarding the classification of dry, whole, mung beans based upon information supplied in its ruling request. In that ruling, the mung beans were classified in subheading 0713.31.10, HTSUS, which provides for: Beans of the species Vigna mungo (L.) Hepper or Vigna radiata (L.) Wilczek: Seeds of a kind used for sowing. Caudill has entered merchandise identified as mung beans under subheading 0713.31.20 or 0713.31.40, HTSUS, contending that the merchandise is to be used for food consumption and not for planting.
What is the classification of dry, whole mung beans?
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, 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 may then be applied in order.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The relevant HTSUS provisions under consideration are as follows:
0713 Dried leguminous vegetables, shelled, whether or not skinned or split:
0713.31 Beans of the species Vigna mungo (L.) Hepper or Vigna radiata (L.) Wilczek:
0713.31.1000 Seeds of a kind used for sowing
0713.31.2000 If entered for consumption during the period from May 1 to August 31, inclusive, in any year.
0713.31.40 00 If entered for consumption outside the above stated period, or if withdrawn for consumption at any time.
The EN to heading 07.13 provides, in relevant part, as follows:
This heading covers leguminous vegetables of heading 07.08 which have been dried and shelled, of a kind used for human or animal consumption (e.g., peas, chickpeas, Adzuki and other beans, lentils, broad beans, horse beans, guar seeds), even if intended for sowing (whether or not rendered inedible by chemical treatment) or for other purposes.
When classifying shelled, dry, whole leguminous vegetables, Customs has traditionally presumed that the product is a "seed of a kind used for sowing" unless the importer provided evidence that the merchandise was not for sowing or planting.
When Claudill requested a classification ruling on its dry, whole mung beans on June 13, and August 16, 1995, it did not provide Customs National Commodity Specialist Division with adequate indications that the product was not of a kind used for sowing. Accordingly, the ruling letter issued at that time, based on the information available to Customs, was not incorrect.
Claudill now asserts that the product is intended for and used as a human food product and has submitted a statement to that effect. Particularly because mung beans of a kind used for sowing and mung beans to be used for human or animal consumption are indistinguishable, Claudill can and should provide more documentation than a simple statement of its product's intended use after importation. Heading 0713.31.10, HTSUS, is a principal use provision providing for mung beans. Since Claudill claims that its products are not of a kind used for sowing, it can demonstrate that by providing Customs evidence which will show its use. That can be accomplished by providing packing labels that indicate the merchandise is to be used as a human food product, and other evidence. The Court of Customs and Patent Appeals in United States v. The Carborundum Company, 536 F.2d 373, June 17, 1976, listed factors which have been considered pertinent in determining whether imported merchandise falls within a particular class or kind for classification purposes. To show that its product is not of a kind used for sowing, among its submissions Claudill can present evidence which shows how the channels of trade in which its merchandise differs from that of seeds of a kind used for sowing, such as advertising, packaging, shipping and handling, etc. It can show the different environments of sale of the two types of seed. Seed of a kind used for sowing must comply with the requirements of the Federal Seed Act set forth in US Department of Agriculture Regulations Part 361 (7 CFR 361). Claudill can provide evidence that its product is not shipped, packaged or labeled for inspection in accordance with that Act, but rather that it meets the requirements for food grade merchandise.
When Claudill presents the information required by Part 177, Customs Regulations, specifically the "full and complete description of the article and wherever germane to the proper classification of the article [as in this
instance], information as to the article's chief use in the United States"
(19 CFR 177.2(b)(2)(ii)), Customs will issue a ruling on its merchandise.
NY 813882, dated September 7, 1995, is affirmed.
You are to mail this decision to the internal advice applicant no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Myles B. Harmon, Director
Commercial Rulings Division