HQ H289310
CLA-2 OT:RR:CTF:FTM HQ H289310 TSM
Port Director
Port of Newark
1210 Corbin Street
Elizabeth, NJ 07201
Attn: Denise Basilio, Senior Import Specialist
Re: Protest and Application for Further Review No. 4601-2017-102814; Classification of granulated garlic products.
Dear Port Director:
The following is our decision regarding Protest and Application for Further Review No. 4601-2017-102814, timely filed on August 2, 2017, on behalf of FFI Group LLC (hereinafter “FFI Group” or “Protestant”) regarding the tariff classification of granulated garlic products under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The garlic products at issue are stated to undergo the following manufacturing process: (1) fresh garlic is sorted, peeled, washed and sliced; (2) the sliced garlic is dried at a temperature of 50-60 degrees Celsius for 5 to 6 hours in a dryer oven; (3) the dryer oven has a conveyor belt and the garlic slices pass through various ranges of temperature and air flows until they are transformed into dried garlic flakes; (4) the garlic flakes are then placed in a fixed bed dryer, where they are toasted at 40 to 50 degrees Celsius for 3 to 4 hours; (5) the flakes are then milled into three different end products: toasted minced garlic, toasted garlic granules and toasted garlic powder. This is supported by an affidavit from the manufacturer, dated July 17, 2017, certifying the production process employed.
The subject merchandise was entered on February 7, 2017, under subheading 2005.99.97, HTSUS, which provides for “Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006: Other vegetables and mixtures of vegetables: Other: Other.” The subject entry was liquidated on May 12, 2017, under subheading 0712.90.40, HTSUS, which provides for “Dried vegetables, whole, cut, sliced, broken or in powder, but not further prepared: Other vegetables; mixtures of vegetables: Garlic.”
In the Protest, dated August 2, 2017, FFI Group argued that the subject merchandise is classified under subheading 2005.99.97, HTSUS, as entered. Attached to the Protest were the following documents: (1) manufacturer’s process flow chart, describing the production process employed, step-by-step; and (2) affidavit from the manufacturer, referenced above, certifying the manufacturing process employed.
ISSUE:
Whether the garlic products at issue are classified under heading 0712, HTSUS, as “Dried vegetables, whole, cut, sliced, broken or in powder, but not further prepared,” or under heading 2005, HTSUS, as “Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006.”
LAW AND ANALYSIS:
Initially, we note that the matter protested 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 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. 4601-2017-102814 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 New York Ruling Letter (NY) N264652, dated June 5, 2015, and NY N284131, dated April 6, 2017.
Classification under the HTSUS is determined 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 2017 HTSUS provisions under consideration are as follows:
0712 Dried vegetables, whole, cut, sliced, broken or in powder, but not further prepared
* * *
2005 Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006
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Note 3 to Chapter 7 provides as follows:
Heading 0712 covers all dried vegetables of the kinds falling in headings 0701 to 0711, other than:
(a) Dried leguminous vegetables, shelled (heading 0713);
(b) Sweet corn in the forms specified in headings 1102 to 1104;
(c) Flour, meal, powder, flakes, granules and pellets of potatoes (heading 1105);
(d) Flour, meal and powder of the dried leguminous vegetables of heading 0713 (heading 1106).
* * *
Note 1 to Chapter 20 provides, in relevant part, the following:
This chapter does not cover:
Vegetables, fruit or nuts, prepared or preserved by the processes specified in chapter 7, 8 or 11
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Note 3 to Chapter 20 provides as follows:
Heading 2001, 2004 and 2005 cover, as the case may be, only those products of chapter 7 or of heading 1105 or 1106 (other than flour, meal and powder of the products of chapter 8), which have been prepared or preserved by processes other than those referred to in note 1(a).
* * *
In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. 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 T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
* * *
The General EN to Chapter 7 provides, in pertinent part, the following:
This Chapter covers vegetables, including the products listed in Note 2 to the Chapter, whether fresh, chilled, frozen (uncooked or cooked by steaming or boiling in water), provisionally preserved or dried (including dehydrated, evaporated or freeze-dried). It should be noted that some of these products when dried and powdered are sometimes used as flavouring materials but nevertheless remain classified in heading 07.12.
* * *
Vegetables not presented in a state covered by any heading of this Chapter are classified in Chapter 11 or Section IV. For example, flour, meal and powder of dried leguminous vegetables and flour, meal, powder, flakes, granules and pellets of potatoes are classified in Chapter 11, and vegetables prepared or preserved by any process not provided for in this Chapter fall in Chapter 20.
* * *
The EN to heading 07.12 provides, in pertinent part, the following:
This heading covers vegetables of headings 07.01 to 07.09 which have been dried (including dehydrated, evaporated or freeze-dried) i.e., with their natural water content removed by various processes. The principal kinds of vegetables treated in this way are potatoes, onions, mushrooms, wood ears (Auricularia spp.), jelly fungi (Tremella spp.), truffles, carrots, cabbage and spinach. They are usually prepared in strips or slices, either of one variety or mixed (julienne).
The heading also covers dried vegetables, broken or powdered, such as asparagus, cauliflower, parsley, chervil, onion, garlic, celery, generally used either as flavouring materials or in the preparation of soups.
* * *
The EN to heading 20.05 provides, in pertinent part, the following:
The term “vegetables” in this heading is limited to the products referred to in Note 3 to this Chapter. These products (other than vegetables prepared or preserved by vinegar or acetic acid of heading 20.01, frozen vegetables of heading 20.04 and vegetables preserved by sugar of heading 20.06) are classified in the heading when they have been prepared or preserved by processes not provided for in Chapter 7 or 11.
Such products fall in the heading irrespective of the type of container in which they are put up (often in cans or other airtight containers).
These products, whole, in pieces or crushed, may be preserved in water, in tomato sauce or with other ingredients ready for immediate consumption. They may also be homogenised or mixed together (salads).
* * *
Upon review of the supporting documentation provided by the Protestant, we noted that the product manufacturing process includes usage of a fixed bed dryer (where the garlic products are allegedly toasted). At issue is whether a fixed bed dryer can be used for toasting. Online research regarding fixed bed dryers shows that these machines remove water from the raw materials by forcing ambient air or heated air through the products. Fixed bed dryers are stated to produce better drying quality than sun drying. In addition, fixed bed drying is known as a common method of hot air drying.
In contrast, the term “toast” is defined in the Collins English Dictionary as follows:
to brown the surface of (bread, cheese, etc.) by heating in a toaster, over or near a fire, or in an oven
to warm thoroughly: toast yourselves by the fire.
Based on the above we find that heated air drying, which occurs when a fixed bed dryer is used, does not qualify as “toasting.” As the above definition of the term “toast” shows, toasting requires browning of the surface by being heated in a toaster, over or near a fire, or in an oven. The record does not show that the garlic products at issue were heated in such a manner. Therefore, we conclude that contrary to FFI Group’s claim, there is no support for a finding that the garlic flakes at issue were toasted.
Protestant also argued that the Port’s decision to liquidate the garlic products at issue under heading 0712, HTSUS, was inconsistent with NY N264652, dated June 5, 2015, and NY N284131, dated April 6, 2017. Upon review, we disagree. We note that the garlic products at issue in NY N264652 were toasted and the garlic products at issue in NY N284131 were roasted. It is our position that those additional processing steps of toasting and roasting “further prepared” the garlic products at issue in those rulings beyond drying. Therefore, those products were classified in heading 2005, HTSUS. As discussed above, evidence does not support a conclusion that the garlic products at issue in the instant case were “toasted” and thus “further prepared.”
Based on the foregoing, we conclude that the garlic products at issue are classified in heading 0712, HTSUS, and specifically in subheading 0712.90.40, HTSUS, which provides for “Dried vegetables, whole, cut, sliced, broken or in powder, but not further prepared: Other vegetables; mixtures of vegetables: Garlic.”
HOLDING:
By application of GRIs 1 and 6, the subject garlic products are classified in subheading 0712.90.40, HTSUS, which provides for “Dried vegetables, whole, cut, sliced, broken or in powder, but not further prepared: Other vegetables; mixtures of vegetables: Garlic.” The 2017 column one general rate of duty is 29.8%.
You are instructed to DENY the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division