CLA-2- OT:RR:CTF:TCM H114758 TNA
Port Director, Minneapolis Service Port
U.S. Customs and Border Protection
330 2nd Ave. South Suite 560 Minneapolis, MN 55401
Re: Application for Further Review of Protest No: 3501-10-100015; Korean Pine Nuts
Dear Port Director:
The following is our decision regarding the Application for Further Review (AFR) of Protest No. 3501-10-100015, timely filed on April 26, 2010, on behalf of Specialty Commodities, Inc. (Specialty Commodities or Protestant). The AFR concerns the classification of Korean Pine Nuts under the Harmonized Tariff Schedule of the United States (HTSUS). In reaching our decision, we have taken into consideration additional information supplied to staff of this office during a teleconference on October 4, 2010.
FACTS:
The subject merchandise consists of raw, shelled Korean pine nuts, Pinus koraiensis, the edible seeds of a species of pine trees common to northeast Asia. These seeds have not undergone any further processing before importation.
This protest covers two entries of the subject merchandise, which entered the Minneapolis Port on June 28, 2009 and July 12, 2009 under subheading 0802.90.25, HTSUS, which provides for “Other nuts, fresh or dried, whether or not shelled or peeled: Other: Pignolia: Shelled.” U.S. Customs and Border Protection (CBP) liquidated both entries on October 30, 2010, in subheading 0802.90.97, HTSUS, as “Other nuts, fresh or dried, whether or not shelled or peeled: Other: Other: Other.” The importer filed its protest on April 26, 2010, claiming that the correct classification for the subject merchandise is as entered under subheading 0802.90.25, HTSUS.
ISSUE:
Whether shelled Korean Pine Nuts (“Pinus koraiensis”) are classified as “pignolia” nuts under subheading 0802.90.25, HTSUS, or as “other” nuts under subheading 0802.90.97, HTSUS?
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) against your decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. 19 U.S.C. § 1514(c)(3).
Further Review of Protest No. 3501-10-100015 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the subject Protest is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of CBP or his designee or the customs courts. Specifically, the Protestant argues that the issue of whether “pignolia” includes the subject Korean pine nuts has not yet been ruled upon.
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 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate 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 headings under consideration are the following:
0802 Other nuts, fresh or dried, whether or not shelled or peeled:
0802.90 Other:
Pignolia:
0802.90.25 Shelled
Other:
0802.90.97 Other
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN for heading 0802, HTSUS, states, in pertinent part, the following:
The principal nuts of this heading are almonds (sweet or bitter), hazelnuts or filberts, walnuts, chestnuts (Castanea spp.), pistachios, macadamia nuts, pecans and pignolia nuts (seeds of the Pinus pinea).
There is no dispute that the merchandise is classified in heading 0802, HTSUS, or that it is classified in subheading 0802.90, HTSUS. The determinitive issue is whether the term “pignolia” in subheading 0802.90, HTSUS, describes the subject merchandise. EN 08.02 defines pignolia nuts as the seeds of the Pinus pinea, a species of pine trees indigenous to southern Europe, northern Africa, and parts of the Mediterranean region. Protestant argues, however, that because the ENs are not binding authority, a parenthetical note in the ENs should not serve to limit the definition of pignolia nuts to this one species. To the contrary, Protestant argues that the common and commercial meaning of the term “pignolia” encompasses all varieties of pine nuts. In support of its argument, Protestant cites a number of dictionaries and articles that refer to the term “pignolia” as encompassing all species of pine nuts. See Webster’s Third New International Dictionary; Merriam-Webster Online Dictionary; The Oxford Pocket Dictionary of Current English; Webster’s New World College Dictionary; “Pine Nuts (Pignolia): Species, Products, Markets and Potential for U.S. Production”; “Managing pinon-juniper ecosystems for sustainability and social needs.” As a result, Protestant argues that the term “pignolia” in subheading 0802.90, HTSUS, should be interpreted broadly enough to encompass all varieties of pine nuts, including the subject merchandise.
In response, we note that because pignolia nuts are specifically mentioned in the relevant subheading, they are provided for eo nomine. While Protestant offers a number of sources that define “pignolia” broadly enough to encompass all species of pine nuts, our own research shows that a range of dictionary and scientific sources define “pignolia” to encompass only seeds of the Pinus pinea, or seeds of a limited variety of species, none of which include the subject Pinus koraiensis. The Encyclopedia Brittanica, for example, lists common names for the Pinus pinea, in order of preference, as “pine nut, Italian stone (Pignolia).” The Encyclopedia’s entry for pine nuts says that they are “seeds of a considerable number of species, native to remote and often more or less arid parts of the earth… with the exception of the Italian stone pine, the seeds of which are sold as ‘pignolia’ and exported, pine nuts are largely consumed in the general regions where they are produced.” See Encyclopedia Brittannica Volume 16, page 628. The Oxford English Dictionary also defines “pignolia” as “the edible seed of the cones of certain pines, especially the stone pine, Pinus pinea, of southern Europe; a pine nut.” See www.oed.com. See also http://wiktionary.org (defining pine nut “the edible seed of several species of evergreen pine, especially Pinus pinea, Pinus cembra and Pinus cembroides.”); www.factmonster.com (“pignolia nuts are the seeds of P. pinea of southern Europe, where they are cultivated and much used for food.”); www.ask.com (“pignolia nuts are the seeds of P. Pinea of S. Europe… Seeds of numerous other European and Asian pines are gathered under many local names.”). These sources support CBP’s distinction between Pinus pinea and Pinus koraiensis.
Protestant also cites to an article entitled “Pine Nuts (Pignolia): Species, Products, markets and Potential for U.S. Production,” written for the University of Missouri’s Center for Agroforestry. This article acknowledges the differences between various species of nuts. “Nuts of different pine species differ in size, nutritional/medicinal value and taste,” it says, and explains that the industry began referring to all of them interchangeably as pine nuts, pinyon nuts, pignolia, etc. because “consumers are usually not sophisticated enough to distinguish between nuts of different species.” Given that the industry seems aware of the differentiation between different types of nuts at issue, we find the argument that a lack of sophistication among its consumers should affect the product’s tariff classification to be unpersuasive.
We also note that while Protestant is correct that ENs are not binding authority, we still find them to be persuasive as the official interpretation of the HTSUS. This is especially true in a case such as the present case, where the ENs specifically define a term and offer a definition that is backed up by scientific and lexicographic authority.
Protestant also examines the legislative history behind the United States Tariff Act of 1922, and argues that, at that the time, Congress understood the definition of “pignolia” to include all varieties of pine nuts, including the subject merchandise. Protestant argues that Congress did not intend to limit the definition of the term “pignolia” to specific species of pine nuts, and that this legislative intent has carried through to the present day HTSUS. As a result, Protestant argues that the definition of “pignolia” should not be so limited as to exclude Korean pine nuts.
In response, we note that the ENs are promulgated at the international level as guidance for all countries that have implemented the HTSUS. Although we acknowledge that the tariff schedule, as implemented in the United States, is a statute, it is the ENs that constitute the official guidance for interpreting this statute because the ENs were promulgated at the same international level as the HTSUS to the six-digit level. The term “pignolia” in the tariff schedule appears at the six digit level as a part of subheading 0802.90, HTSUS, because the eight-digit breakout is between shelled and unshelled pignolia nuts. Thus, the ENs still inform the definition of “pignolia” at this level. As a result, we find counsel’s reliance on American congressional intent to be unpersuasive.
HOLDING:
By application of GRI 1, the Korean pine nuts (“Pinus koraiensis”) are classified in under subheading 0802.90.97, HTSUS, which provides for: “Other nuts, fresh or dried, whether or not shelled or peeled: Other: Other: Other.” As such, the general, column one rate of duty is 5¢/kg.
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 International Trade, Regulations and Rulings, will make the decision available to CBP personnel and to the public on the CBP website located 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