HQ H199095


OT:RR:CTF:FTM H199095 TSM

Ms. Estelle Butts
Executive Assistant
Mitsui Foods, Inc.
35 Maple Street
Norwood, NJ 07648

RE: Modification of HQ 086283, NY M86459 and NY N100268; Revocation of NY N303010 and NY 810007; Classification of Turkey Shomai, Chicken Wontons, Shrimp Har Gow, Shrimp Pot Stickers, Shrimp Shumai, Hau Kau and "Party Pack"

Dear Ms. Butts:

This is in reference to Headquarters Ruling Letter ("HQ") 086283, dated May 14, 1990, issued to Mitsui Foods, Inc., concerning the tariff classification of certain Asian foods under the Harmonized Tariff Schedule of the United States ("HTSUS").[1] In that ruling, U.S. Customs and Border Protection ("CBP") classified turkey shomai in heading 1602, HTSUS, which provides in relevant part for "Other prepared or preserved meat." CBP also classified chicken wontons and shrimp har gow in heading 1605, HTSUS, which provides for "Crustaceans, molluscs and other aquatic invertebrates, prepared or preserved." [2] We have reviewed HQ 086283 and find it to be in error with regard to the tariff classification of the turkey shomai, chicken wontons and shrimp har gow, shrimp pot stickers, shrimp shumai, hau kau and "party pack." For the reasons set forth below, we hereby modify HQ 086283.

This is also in reference to four other rulings with substantially similar merchandise: (1) New York Ruling Letter ("NY") M86459, dated October 11, 2006, which was issued to Glacier Imports, Inc., classifying shrimp pot stickers in heading 1605, HTSUS; [3] (2) NY N303010, dated February 13, 2019, which was issued to Nissin International Transport USA Inc., classifying shrimp shumai dumplings in heading 1605, HTSUS; (3) NY 810007, dated May 16, 1995, issued to Peter Hsu Enterprises, Inc., classifying hau kau dumplings under heading 1605, HTSUS; and, (4) NY N100268, dated April 27, 2010, issued to Trangs Group USA Inc., classifying "party pack" dumplings under heading 1605, HTSUS. [4]

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)(1)), as amended by section 623 of title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published in the Customs Bulletin, Volume 53, No. 39, on October 30, 2019, proposing to modify HQ 086283, NY M86459 and NY N100268, revoke NY 810007 and NY N303010, and revoke any treatment accorded to substantially identical transactions. No comments were received in response to the notice.

FACTS:

In HQ 086283, the subject merchandise is described as follows:

The merchandise at issue consists of ... oriental foods imported from Hong Kong. They are: turkey shomai, comprised of 27 percent turkey meat and 20 percent shrimp; chicken wonton, comprised of 27 percent shrimp and 13 percent chicken; hargrow, comprised of 37 percent shrimp ... All consist of a dough jacket filled with a mixture of the meat, fish, and/or vegetables, that is shaped, steamed, frozen and packaged.

In NY M86459, the subject merchandise is described as follows:

The ruling was requested on ... "Shrimp Potstickers." ... [T]hese ... products consist of a dough jacket (of whole meal flour, salt, water and vegetable shortening) stuffed with shrimp (about 40% of the item's total weight, in each instance) and various lesser percentages of cabbage, carrots, vermicelli, salt, sugar, vegetable shortening, sesame oil, mushrooms, and spring onions. Each individual ... "Shrimp Potsticker" will weigh approximately 15 grams. Prior to packaging, ... the potstickers will be steamed. Subsequently, ten (10) pieces of ... the "Shrimp Potstickers" will be sealed in plastic bags (not "air-tight"), inserted into their respective cardboard retail boxes, and frozen prior to their exportation to the United States.

In NY N303010, the subject merchandise is described as follows:

Shrimp Dumplings (Item Number WAF 91869, also known as Shrimp Shumai) is composed of onion, shrimp (21.17 percent), potato starch, wheat flour, oils, Lizardfish paste, water, egg white, soy protein, sugar, salt, monosodium glutamate, spices, wheat protein, soybean flour, shrimp extract, dextrin, potassium chloride, sodium citrate, calcium lactate, disodium succinate, disodium inosinate and disodium guanylate.

Shrimp Dumplings (Item Number WAF 97713, also known as Shrimp Shumai) is composed of onion, shrimp (17.85 percent), Pollock paste (17.85 percent), water, wheat flour, oils, potato starch, egg white, soy protein, sugar, salt, wheat protein, monosodium glutamate, spices, shrimp extract, potassium chloride, sodium citrate, calcium lactate, disodium succinate, disodium inosinate and disodium guanylate.

Both products will be imported in a frozen state. The consumer is directed to either fry, steam or microwave the items prior to consumption. You state that item number WAF 97713 will be placed on trays, inserted into a polypropylene bag and packed 12 bags to a cardboard box. Item number WAF 91869 will be placed on trays, inserted into a microwavable bag and packed 10 bags to a cardboard box. The former items are sold to the food service industry, and the latter items are intended for retail sale.

In NY 810007, the subject merchandise is described as follows:

Hau Kau (shrimp dumplings) - fresh, uncooked, and frozen. The ingredients are shrimp (38 percent), vegetables, seasoning, and pastry. There are two methods of packaging: 1) packed 2 kilograms per carton, 6 cartons to a master cartons, 2) 500 grams per carton, 20 cartons to a master carton.

In NY N100268, the subject merchandise is described as follows:

The third item, identified as a "Party Pack," is made up principally of Asian-style dumplings of three different kinds, packed (mixed) together in one common bag. The three kinds are as follows:

. "Money Purses (Bags)," each of which consists of a dough jacket, shaped like a drawstring-type cloth coin bag, filled with fish, shrimp and other foodstuffs. The ingredients are filo pastry [wheat flour, water, salt, vegetable oil] (35%), whitefish [Pangasius hypophthalmus] (27.1%), chopped shrimp (15.52%), onion, modified starch, spring onion, peas, bean, cabbage, sweet corn, yam bean, carrot, salt, pepper, oyster sauce, sesame oil, garlic. . "Shrimp Triangles," each of which consists of a triangular-shaped dough jacket filled with shrimp, vegetables and other foodstuffs. The ingredients are vannemei shrimp (48%), filo pastry [water, wheat flour, vegetable oil, salt], cabbage, "vice vermicelli" (rice noodles), bean sprouts, carrot, vegetable oil, spring onion, corn starch, soy sauce, onion, garlic, sesame oil, red Thai curry seasoning, salt, sugar, pepper. . "Filo Shrimp," each of which consists of a cylinder-like dough jacket filled with shrimp and other foodstuffs. The ingredients are vannemei shrimp (50%), filo pastry [wheat flour, water, salt, vegetable oil], garlic powder, pepper.

In addition to the above-described dumplings, the "Party Pack" box will also contain sachets of teriyaki sauce (water, soybean sauce, sesame oil, sugar, salt) and sweet chili sauce (water, wheat flour, chili, garlic, sugar, salt).

ISSUE:

Are the subject Asian dumplings classified in headings 1602 or 1605, HTSUS, as prepared or preserved meat or crustaceans respectively? Or are they classified in heading 1902, HTSUS, which provides for stuffed pasta?

LAW AND ANALYSIS:

Classification under the HTSUS is made 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 HTSUS provisions under consideration are as follows:

1602 Other prepared or preserved meat, meat offal or blood:

* * *

1605 Crustaceans, molluscs and other aquatic invertebrates, prepared or preserved:

* * *

1902 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:

* * *

Note 2 to Chapter 16 provides as follows:

2. Food preparations fall in this chapter provided that they contain more than 20 percent by weight of sausage, meat, meat offal, blood, fish or crustaceans, molluscs or other aquatic invertebrates, or any combination thereof. In cases where the preparation contains two or more of the products mentioned above, it is classified in the heading of chapter 16 corresponding to the component or components which predominate by weight. These provisions do not apply to the stuffed products of heading 1902 or to the preparations of heading 2103 or 2104 (emphasis added).

* * *

Note 1(a) to Chapter 19 provides as follows: 1. This chapter does not cover:

(a) Except in the case of stuffed products of heading 1902, food preparations containing more than 20 percent by weight of sausage, meat, meat offal, blood, fish or crustaceans, molluscs or other aquatic invertebrates, or any combination thereof (chapter 16);

* * *

The Harmonized Commodity Description and Coding System Explanatory Notes ("ENs") constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System at the international level and are generally indicative of the proper interpretation of these headings. See Treas. Dec. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

EN 19.02 states that:

The pasta of this heading are unfermented products made from semolinas or flours of wheat, maize, rice, potatoes, etc. These semolinas or flours (or intermixtures thereof) are first mixed with water and kneaded into a dough which may also incorporate other ingredients (e.g., very finely chopped vegetables, vegetable juice or pures, eggs, milk, gluten, diastases, vitamins, colouring matter, flavouring). The doughs are then formed (e.g., by extrusion and cutting, by rolling and cutting, by pressing, by moulding or by agglomeration in rotating drums) into specific predetermined shapes (such as tubes, strips, filaments, cockleshells, beads, granules, stars, elbow-bends, letters). In this process a small quantity of oil is sometimes added. These forms often give rise to the names of the finished products (e.g., macaroni, tagliatelle, spaghetti, noodles). The products are usually dried before marketing to facilitate transport, storage and conservation; in this dried form, they are brittle. The heading also covers undried (i.e., moist or fresh) and frozen products, for example, fresh gnocchi and frozen ravioli.

The pasta of this heading may be cooked, stuffed with meat, fish, cheese or other substances in any proportion or otherwise prepared (e.g., as prepared dishes containing other ingredients such as vegetables, sauce, meat). Cooking serves to soften the pasta without changing its basic original form. Stuffed pasta may be fully closed (for example, ravioli), open at the ends (for example, cannelloni) or layered, such as lasagne. * * *

Note 2 to Chapter 16 and Note 1(a) to Chapter 19 state that products which contain more than twenty percent by weight of meat are classified in Chapter 16. However, the Notes state that stuffed pasta is always classified in heading 1902, HTSUS, regardless of the meat's weight. As such, we must first determine whether the turkey shomai, chicken wontons, shrimp har gow and shrimp pot stickers are stuffed pasta.

In HQ H180095, dated September 3, 2013, we proffered several definitions of the term "pasta." [5] We cited to Webster's College Dictionary, which defines "pasta" as "a flour paste or dough made of semolina and dried, as for spaghetti and macaroni, or used fresh, as for ravioli." See Webster's College Dictionary 1053 (4th Ed. 2007). We also cited The American Heritage Dictionary, which defines "pasta" as "1. Unleavened dough, made of wheat flour, water, and sometimes eggs, that is molded into any of a variety of shapes and boiled." These definitions are consistent with EN 19.02, which defines pasta as being comprised of semolina or flour which is mixed with water and then kneaded into dough. EN 19.02 further states that pasta may be cooked and stuffed with meat, fish or other substances. Heading 1902, HTSUS, also covers frozen stuffed pasta, such as frozen ravioli. According to the aforementioned definitions, stuffed pasta consists of a semolina or flour dough jacket stuffed with meat, fish or other substances. The subject turkey shomai, chicken wontons, shrimp har gow, shrimp pot stickers, shrimp shumai, hau kau and "party pack" all consist of a flour dough jacket stuffed with turkey, chicken, shrimp and/or fish. Like frozen ravioli, the subject merchandise is molded into specific shapes and frozen. As such, the subject merchandise is classifiable as stuffed pasta of heading 1902, HTSUS. Note 2 to Chapter 16 excludes these products from classification in Chapter 16.

HOLDING:

By application of GRI 1, the turkey shomai, chicken wontons, shrimp har gow and shrimp pot stickers are classified under heading 1902, HTSUS, and specifically under subheading 1902.20.00, HTSUS, which provides in relevant part 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...: Stuffed pasta, whether or not cooked or otherwise prepared." The 2019 column one, general rate of duty is 6.4 percent ad valorem.

EFFECT ON OTHER RULINGS:

HQ 086283, dated May 14, 1990, is hereby modified with regard to the tariff classification of the turkey shomai, chicken wonton and shrimp har gow.

NY M86459, dated October 11, 2006, is hereby modified with regard to the tariff classification of the shrimp pot stickers.

NY N100268, dated April 27, 2010, is hereby modified with regard to the tariff classification of the "Party Pack" Asian-style dumplings.

NY 810007, dated May 16, 1995, is hereby revoked.

NY N303010, dated February 13, 2019, is hereby revoked.

In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division


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[1] HQ 086283 modified New York Ruling Letter ("NY") 828470, dated April 20, 1988.
[2] We note that NY 086283 also classified two other products, turkey wok stickers and turkey cocktail spring rolls, which are not at issue here.
[3] We note that NY M86459 also classified one other product, shrimp egg rolls, which is not at issue here.
[4] We note that NY N100268 also classified two other products, honey shrimp and potato shrimp, which are not at issue here.
[5] When, as in this case, a tariff term is not defined by the HTSUS or its legislative history, "the term's correct meaning is its common meaning." Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994). The common meaning of a term used in commerce is presumed to be the same as its commercial meaning. Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989). To ascertain the common meaning of a term, a court may consult "dictionaries, scientific authorities, and other reliable information sources" and "lexicographic and other materials." C.J. Tower & Sons v. United States, 673 F.2d 1268, 1271 (CCPA 1982); Simod, 872 F.2d at 1576.