OT:RR:CTF:FTM H316296 MD

Center Director
Agriculture & Prepared Products CEE
U.S. Customs and Border Protection
555 Battery Street
San Francisco, CA 94111

ATTN: Cheryl A. Lien, Import Specialist

RE: Application for Further Review of Protest No. 2704-20-149105; Classification of “Gluten-Free Pasta”

Dear Center Director,

The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 2704-20-149105, timely filed by Sandler, Travis, and Rosenberg, P.A., on December 17, 2020, on behalf of their client, Ethical Brands Inc. (“Ethical Brands” or “Protestant”), regarding U.S. Customs and Border Protection (“CBP”) tariff classification of “gluten-free pasta,” under subheading 2008.99.6100, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). FACTS:

The subject “gluten-free pasta” is described as “uncooked, dried pastas of bean (legume) flour.” Specifically, the five varieties of “gluten-free pasta” are labelled: 1) “Organic Edamame & Mung Bean Fettucine;” 2) “Organic Black Bean Spaghetti;” 3) “Organic Edamame Spaghetti;” 4) “Organic Edamame & Spirulina Spaghetti;” and 5) “Organic Black Bean & Sesame Fettucine.” The component ingredients of the “gluten-free pasta” consist of various vegetable flours and water. Specifically, the documents provided for our review indicate that the Organic Edamame & Mung Bean Fettucine is made from “[o]rganic edamame bean flour (green soybeans),” “[o]rganic mung bean flour,” and water; the Organic Black Bean Spaghetti is made from “[o]rganic black bean flour (black soybeans)” and water; the Organic Edamame Spaghetti is made from “[o]rganic edamame bean flour (green soybeans)” and water; the Organic Edamame & Spirulina Spaghetti is made from “[o]rganic edamame bean flour,” “[o]rganic spirulina powder,” and water; and the Organic Black Bean & Sesame Fettucine is made from “[o]rganic black bean flour (black soybeans),” “[o]rganic black sesame seed flour,” and water. The processing of the “gluten-free pasta” occurs in the People’s Republic of China and is described as “processing the beans into flour,” “processing the flour into dough,” “and further processing the dough into pasta” by means of extrusion, drying, cooling, and cutting.

The subject merchandise was entered between November 2019 and January 2020 under subheading 1902.19.2090, HTSUSA, which provides for “Pasta, whether or not cooked of stuffed (with meat or other substances) or otherwise prepared, such as spaghetti, macaroni, noodles, lasagna, gnocchi, ravioli, cannelloni; couscous, whether or not prepared: Uncooked pasta, not stuffed or otherwise prepared: Other: Exclusively pasta: Product of a country other than an EU country.” The general, column one, duty rate was free. On April 17, 2020, CBP issued a Request for Information (“CBP Form 28”) concerning the classification of the subject merchandise under subheading 1902.19.2090, HTSUSA. Specifically, CBP requested the ingredient breakdown and processing steps of the Edamame Mung Bean Fettucine and Black Bean Spaghetti from Protestant.

Protestant responded that the Edamame Mung Bean Fettucine was “composed of 95% edamame flour and 5% mung bean flour,” whereas the Black Bean Spaghetti was “100% composed of black bean flour.” Protestant also provided that a third product, described as “edamame pasta, was 100% composed of edamame flour.” CBP was also furnished with the “ingredient lists, product specification sheets[,] and production flowcharts for each of the products at issue.”

On September 14, 2020, CBP issued a Proposed Notice of Action (“CBP Form 29”) concerning the aforementioned entries of subject merchandise. Within the CBP Form 29, CBP stated that the products at-issue “should be properly classified under HTS# 2008.99.6100 which is dutiable at 3.8%.” Specifically, subheading 2008.99.6100, HTSUSA, provides for “Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Other: Soybeans.”

ISSUE:

What is the proper tariff 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 HTSUS provisions under consideration are as follows:

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: Uncooked pasta, not stuffed or otherwise prepared:

1902.19 Other:

1902.19.20 Exclusively pasta:

1902.19.2090 Product of a country other than an EU country.

* * *

2008 Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19:

2008.99 Other:

2008.99.6100 Soybeans.

* * *

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 1902 read as follows:

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 purees, 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 […] These forms often given 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 relevant ENs for Heading 2008 include:

This heading covers fruit, nuts and other edible parts of plants, whether whole, in pieces or crushed, including mixtures thereof, prepared or preserved otherwise than by any of the processes specified in other Chapters or in the preceding headings of this Chapter.

It includes, inter alia:

Almonds, ground-nuts, areca (or betel) nuts and other nuts, dry-roasted, oil-roasted or fat-roasted, whether or not containing or coated with vegetable oil, salt, flavours, spices or other additives. “Peanut butter,” consisting of a paste made by grinding roasted ground-nuts, whether or not containing added salt or oil. Fruit (including fruit-peel and seeds) preserved in water, in syrup, in chemicals or in alcohol. Fruit pulp, sterilized, whether or not cooked. Whole fruits, such as peaches (including nectarines), apricots, oranges (whether or not peeled or with the stones or pips removed) crushed and sterilized, whether or not containing added water or sugar syrup but in a proportion insufficient to render them ready for direct consumption as beverages. When rendered ready for direct consumption as beverages by addition of a sufficient quantity of water or of sugar syrup, these products fall in heading 22.02. Cooked fruit. However, fruit cooked by steaming or boiling in water and frozen remains in heading 08.11. Stems, roots and other edible parts of plants (e.g., ginger, angelica, yams, sweet potatoes, hop shoots, vine leaves, palm hearts) conserved in syrup or otherwise prepared or preserved. Tamarind pods in a sugar syrup. Fruit, nuts, fruit-peel and other edible parts of plants (other than vegetables), preserved by sugar and put up in sugar (e.g. marrons glacés or ginger), whatever the packing. Fruit preserved by osmotic dehydration. The expression “osmotic dehydration” refers to a process whereby pieces of fruit are subjected to prolonged soaking in a concentrated sugar syrup so that much of the water and the natural sugar of the fruit is replaced by sugar from the syrup. The fruit may subsequently be air-dried to further reduce the moisture content.

* * *

It is asserted that the “gluten-free pasta” was improperly classified under heading 2008, HTSUS, which provides for “Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included.” Specifically, the AFR notes that “[n]one of the exemplars listed in the ENs to heading 2008 are akin to flour pasta products.” In reference to the ENs to heading 2008, Protestant asserts that this heading covers products that have “the essential character of fruit, nuts or other edible parts of plants.” Specifically, Protestant states that “beans which are processed into flour, the flour of which is combined with water to form dough, the dough being extruded into pasta and dried, to form pasta, do not have “the essential character of fruit, nuts or other edible parts of plants.”” Moreover, Protestant states that heading 1902, HTSUS, explicitly provides for “pasta,” whereas heading 2008, HTSUS, covers “other edible parts of plants, otherwise prepared or preserved, … not elsewhere specified or included.” Therefore, Protestant claims that the application of the GRIs to the instant merchandise results in classification in heading 1902, HTSUS, which explicitly describes the product, “pasta”, at the heading level. Accordingly, it is proposed that the processing of the “gluten-free pasta;” which consists of “processing the beans into flour,” “processing the flour into dough,” “and further processing the dough into pasta” by means of extrusion, drying, cooling, and cutting, renders them classifiable within heading 1902, HTSUS, and specifically, in subheading 1902.19.2090, HTSUSA, which provides for “Pasta, whether or not cooked of stuffed (with meat or other substances) or otherwise prepared, such as spaghetti, macaroni, noodles, lasagna, gnocchi, ravioli, cannelloni; couscous, whether or not prepared: Uncooked pasta, not stuffed or otherwise prepared: Other: Exclusively pasta: Product of a country other than an EU country.” We agree.

According to the submitted materials, each of the five varieties of “gluten-free pasta” contain two critical component ingredients – soybean flour (either from green soybeans or black soybeans) and water. While some of the varieties of “gluten-free pasta” also contain other flours, such as mung bean flour or black sesame seed flour, or spirulina powder, the documentation provided shows that each of the five varieties of “gluten-free pasta” are either entirely or primarily made from the aforementioned soybean flour. Importantly, this flour is “process[ed] into dough,” “and further process[ed]” into pasta by means of extrusion, drying, cooling, and cutting. This manufacturing process, as well as the state of the final product supports classification within heading 1902, HTSUS.

The ENs for heading 1902 explicitly provide that “[t]he pasta of this heading are unfermented products made from semolinas or flours of wheat, maize, rice, potatoes, etc.” CBP has routinely used the doctrine of noscitur a sociis to determine what is or is not a “pasta” for tariff classification purposes. In Headquarters Ruling Letter (“HQ”) H180095, dated September 3, 2013, CBP thoroughly discussed its application of this doctrine, alongside proffered lexicographic definitions, in its classification of lentil strips. In relevant part, HQ H180095 stated:

When applying the doctrine of “noscitur a sociis,” CBP has examined lexicographical and commercial sources to determine the meaning of the surrounding tariff terms, and examined the merchandise at issue to determine whether it comported with these definitions. See HQ 957350, HQ 088454, HQ H032716.

[A]n examination of lexicographic and commercial sources reveals that pasta has certain characteristics that make it a pasta. The Oxford English Dictionary (“OED”) defines “pasta” as “thin strands, sheets, or other shapes of dough made from durum wheat and water (sometimes enriched with egg), freq[uently] sold dried and usually cooked in boiling water

[…]

The American Heritage Dictionary 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.”

[…]

The Encyclopedia Britannica defines pasta as: Any of several starchy food pastes (pasta alimentaria) made from semolina, the purified middlings (endosperm) of a hard wheat durum… In making pasta, semolina dough is rolled out and sliced or compacted and forced through perforated plates (dies) that form it into the desired shape. It is produced in the form of sheets, ribbons, cords, tubes, and other shapes, each with its own name (e.g. spaghetti, macaroni). The formed dough is then dried under controlled conditions.

In HQ H180095, the lentil strips were not classified as “pasta” because it was “not commercially interchangeable with pasta” and were baked or fried and intended for use as a snack food. Nevertheless, despite HQ H180095 ultimately concluded that the lentil strips did not comport with the exemplars of heading 1902, HTSUS, and were thus precluded from classification therein, the definitions and analysis utilized in HQ H180095 are consistent with EN to heading 1902, which defines pasta as being comprised of semolina or flour, which is mixed with water and then kneaded into dough. The ENs of heading 1902 are clear – pasta products are made from semolina flours of wheat, maize, rice, potatoes, etc. While soybeans are not explicitly listed within the EN, the term “etc.” is a general term following a list of exemplars which implicates the rule of ejusdem generis. The ENs indicate that heading 1902 pastas may be derived from a variety of vegetable matter or grains, and may be fashioned into any shape. However, there is no latitude regarding the intermediary ingredient: the pasta must be made from a pre-existing semolina or flour. Although pasta is traditionally produced using flours of wheat, maize, rice, and/or potatoes, this does not mean that any “pastas” made from non-traditional flours are automatically excluded from classification therein.

In the contemporary understanding is the recognition that various foodstuffs may be made by either traditional or non-traditional ingredients to conform to the ever-changing desires and/or needs of the modern consumer. One such modification has been the culinary emergence and popularity of gluten-free products, marketed as a healthier alternative to traditional products and to those with dietary restrictions pertaining to gluten. As such, while flour derived from soybeans may not explicitly be listed within the ENs to heading 1902, an understanding of ejusdem generis dictates that soybean flour would be of the same kind as the wheat, maize, rice, and/or potato flour enumerated within the EN if virtually identically processing produces an ultimate product which is popularly understood, identified, and used as “pasta.”

As previously noted, the manufacturing process of the subject merchandise consists of “processing the beans into flour,” “processing the flour into dough,” “and further processing the dough into pasta” by means of extrusion, drying, cooling, and cutting. This processing is identical to the process described within the ENs to heading 1902, HTSUS, pertaining to the manufacture of pasta. Specifically, the heading 1902, HTSUS, ENs enumerate that “pastas of this heading are unfermented products made from semolinas or flours of wheat, maize, rice, potatoes, etc […] [which] are first mixed with water and kneaded into a dough.” This resulting dough is then “formed (e.g. by extrusion and cutting […]) into specific pre-determined shapes […] [which] often give rise to the names of the finished products (e.g. macaroni, tagliatelle, spaghetti, noodles).” After processing, “[t]he products are usually dried before marketing to facilitate transport, storage, and conservation; in this dried form, they are brittle.

Each of the five varieties of “gluten-free pasta” are manufactured in the same way as traditional pasta, resulting in a product which appears virtually identical to pasta – coming in the traditional pasta shapes, albeit, with variance in color. These general physical characteristics lend to the understanding of the consumer that the subject merchandise is pasta, just gluten-free. As a result, the subject merchandise will most likely be prepared by the consumer as if it were traditionally-made pasta – the dried pasta will be boiled in water before being served alongside the consumer’s preferred accoutrement. In this regard, the “gluten-free pasta” possesses the same general physical characteristics as traditionally made pasta, which imparts an identical expectation of the product to the ultimate purchaser and facilitates its use as pasta.

To summarize, the five varieties of “gluten-free pasta” are made from flours contemplated within the ENs to heading 1902, HTSUS. These flours are then utilized in a manufacturing process of the “gluten-free pasta” which is virtually identical to that of traditionally made pasta. As such, the “gluten-free pasta” exhibits the same general physical characteristics of traditionally made pasta, which in turn imparts an expectation in the ultimate purchaser that the subject matter should be utilized as if it were traditionally made pasta. For these reasons, the “gluten-free pasta” is properly classified under heading 1902, HTSUS, and specifically under subheading 1902.19.2090, HTSUSA.

HOLDING:

By application of GRIs 1 and 6, the subject “gluten-free pasta” is classified under subheading 1902.19.2090, HTSUSA, which provides for “[p]asta, 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: Uncooked pasta, not stuffed or otherwise prepared: Other: Exclusively pasta: Product of a country other than an EU country.” The general, column one duty rate is free.

You are instructed to GRANT the Protest in Full.

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 re-liquidation 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,

For Craig T. Clark, Director
Commercial and Trade Facilitation Division