CLA-2 OT:RR:CTF:TCM H077016 CkG
Category: Classificaiton
Tariff No.: 2103.90.80
Port Director
U.S. Customs and Border Protection
312 Fore Street
Portland, ME 04101
Re: Application for Further Review of Protest No. 0101-09-100005; Classification of “Go Salt” salt substitute
Dear Port Director,
This is in response to your correspondence dated September 14, 2009,
forwarding Application for Further Review of Protest No. 0101-09-100005, filed on behalf of Hydroblend, Inc. (“Protestant”), contesting Customs and Border Protection’s (CBP) classification and liquidation of one entry of “Go Salt” salt substitute under heading 0910 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Ginger, saffron, turmeric (curcuma), thyme, bay leaves, curry and other spices.”
FACTS
The Protest concerns a single entry of merchandise described on the commercial invoice as “AF-1628 Go-Salt Powder-Salt Substitute/Flavour Enhancer/Food Additive” (Go Salt). Go-Salt is composed of 98% potassium chloride, with other flavorings comprising the remaining 2%. Go-Salt is sued as a salt substitute in the preparation of human food products.
ISSUE
Whether “Go-Salt” is classifiable as a spice of heading 0910, HTSUS, a mixed seasoning of heading 2103, HTSUS, or salt of heading 2105, HTSUS.
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 first entry for entries made on or after December 18, 2004. (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. 0101-09-100005 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts.
Classification of goods under the HTSUS is governed by 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 GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
0910: Ginger, saffron, turmeric (curcuma), thyme, bay leaves, curry and other spices:
Other spices:
0910.91.00: Mixtures referred to in note 1(b) to this chapter . . .
0910.99: Other:
Other:
0910.99.60: Other…
* * * *
2103: Sauces and preparations therefore; mixed condiments and mixed seasonings; mustard flour and meal and prepared mustard:
2103.90: Other:
Other:
Mixed condiments and mixed seasonings:
2103.90.80: Other . . . . .
* * * *
2501.00.00: Salt (including table salt and denatured salt) and pure sodium chloride, whether
or not in aqueous solution or containing added anticaking or free-flowing agents; sea water . . .
* * * *
Note 1(b) to Chapter provides as follows:
1. Mixtures of the products of headings 0904 to 0910 are to be classified as follows:
…..
(b) Mixtures of two or more of the products of different headings are to be
classified in heading 0910.
The addition of other substances to the products of headings 0904 to 0910 (or to the mixtures referred to in paragraph (a) or (b) above) shall not affect their classification provided the resulting mixtures retain the essential character of the goods of those headings. Otherwise such mixtures are not classified in this chapter; those constituting mixed condiments or mixed seasonings are classified in heading 2103.
* * * *
The Harmonized Commodity Description and Coding System Explanatory Notes
(“ENs”) constitute the official interpretation of the HTSUS. While not legally binding or
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 at the
international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN to heading 2501, HTSUS, provides, in pertinent part, as follows:
This heading relates to sodium chloride, commonly known as salt.
* * * *
The Protestant requests classification of the instant merchandise as a salt of heading 2501, HTSUS. Heading 2501, HTSUS, provides for sodium chloride only. The instant merchandise consists primarily of potassium chloride, and thus is not a salt of heading 2501, HTSUS.
The merchandise was entered and liquidated in heading 0910, HTSUS, specifically subheading 0910.91.00, HTSUS, which provides for “Ginger, saffron, turmeric (curcuma), thyme, bay leaves, curry and other spices… Mixtures referred to in note 1(b) to this chapter.” The term “spice” is not defined in the tariff or Explanatory Notes. It is also not defined in any of the chapters or section notes at issue. When a tariff term is not defined, the correct meaning of the term is presumed to be its common meaning in the absence of evidence to the contrary. See Rohm & Haas Co. v. United States, 727 F.2d 1095 (CAFC 1984). Accordingly, the Merriam-Webster Dictionary Online defines “spice” as “any of various aromatic vegetable products (as pepper or nutmeg) used to season or flavor foods.” The Cambridge Online Dictionary similarly defines “spice” as “a substance made from a plant, which is used to give a special flavour to food.” Neither salt nor potassium chloride are derived from a vegetable source. Go-Salt is thus not a “spice” classifiable in heading 9010, HTSUS.
However, heading 2103, HTSUS, does apply to the instant merchandise. Heading 2103, HTSUS, provides for, inter alia, mixed condiments and mixed seasonings. Go-Salt is a mixture of potassium chloride and “other flavorings.” The purpose of Go-Salt is to substitute for salt “in all applications where salt is required for taste purposes.” Salt is used as seasoning for food. When combined with other flavorings, CBP has consistently classified salt-based food ingredients in heading 2103, HTSUS. See e.g., NY 891454, dated October 29, 1993, and NY K81632, dated December 15, 2003. As Go-Salt is to be used in the same manner and applications as salt and salt-based flavorings, it is classifiable as a seasoning of heading 2103, HTSUS.
HOLDING
By application of GRI 1, the instant merchandise is classifiable in heading 2103,
HTSUS, specifically subheading 2103.90.80, which provides for “Sauces and
preparations therefore; mixed condiments and mixed seasonings; mustard flour and
meal and prepared mustard: Other: Other: Mixed condiments and mixed seasonings:
Other.” The 2009, column one, general rate of duty is 6.4% ad valorem.
Since reclassification of the merchandise as indicated above will result in a higher rate of duty, you are instructed to deny 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 Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division