OT: RR: CTF: TCM: H236277 ERB
Mr. Nick Cino
Lamb Weston Sales, Inc.
ConAgra
8701 West Gage Boulevard
Kennewick WA 99336
RE: Request for Reconsideration of New York Ruling N233001; Tariff Classification of Sweet Potato Puffs
Dear Mr. Cino:
This is in response to your November 13, 2012 request for reconsideration of New York Ruling Letter (NY) N233001, dated October 4, 2012. In that ruling, the National Commodity Specialist Division found that the subject merchandise described as “Sweet Potato Puffs”, imported by Lamb Weston Sales, Inc. (Lamb Weston), was classified under subheading 2008.99.90, of the Harmonized Tariff Schedule of the United States (HTSUS). That subheading 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.”
We hereby affirm N233001 because we agree that a product described as par fried ipomoaea batatas (sweet potato), which has been peeled, cut, blanched, and formed into a pellet shape through an extrusion process, individually quick frozen, and which is comprised predominantly of sweet potatoes, along with smaller amounts of sugar, cornstarch, canola oil, modified food starch, rice flour, salt, dextrin, natural flavor, coloring, dextrose, xanthan gum, and leavening, is classified in subheading 2008.99.90, HTSUS.
In your request you argue that pursuant to a GRI 3(b) analysis, the subject sweet potato puffs are specifically provided for in subheading 2004.90.85, HTSUS, which provides for, “Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, frozen, other than products of heading 2006: Other vegetables and mixtures of vegetables: Other.” In opposing Custom’s classification, you further argue that the subject puffs are not classified in the “catch-all provision” of subheading 2008.99.90, HTSUS.
The classification of merchandise under the HTSUS is governed by the principles set forth in the GRIs and the Additional U.S. Rules of Interpretation. The GRIs are applied in numerical order and we may only turn to subsequent GRIs if the proper classification of the imported goods cannot be accomplished by reference to a preceding GRI. Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999). GRI 1 provides that “for legal purposes classification shall be determined according to the terms of the heading and any relative Section or Chapter notes and, provided such headings or Notes do not otherwise require, according to the [remaining GRIs].”
The vast majority of the bulk, weight, and character of the subject merchandise, which is advertised to consumers as a “Sweet Potato Puff”, is sweet potato. Therefore, the subject merchandise is a sweet potato preparation. Though the puffs have been processed and prepared with some other ingredients, the product’s essential character as a sweet potato has not been transformed. See Orlando Food Corp. v. United States, 140 F.3d 1437, 1441 (Fed. Cir. 1998), (“The term “prepared” suggests…the addition of incidental ingredients that do not affect the essential character of the product.”)
Sweet potatoes are not vegetables for tariff classification purposes. They fall into the category of certain roots and tubers with high starch or inulin content. If imported alone, they are classified in heading 0714.20, HTSUS, which provides for, “Cassava (manioc), arrowroot, salep, Jerusalem artichokes, sweet potatoes and similar roots and tubers with high starch or inulin content, fresh, chilled, frozen or dried, whether or not sliced or in the form of pellets; sago pith: Sweet Potatoes.” Goods that are considered vegetables are classified elsewhere in chapter 7.
This differentiation between vegetables and certain roots and tubers is also supported by the Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System. The EN 20.08(7) indicates that heading 2008, HTSUS includes “[s]tems, roots and other edible parts of plants (e.g., ginger, angelica, yams, sweet potatoes…) conserved in syrup or otherwise prepared or preserved.”
Therefore, the heading text of 2004, HTSUS, which provides for “other vegetables prepared or preserved…” does not describe the subject merchandise. Rather, sweet potato puffs are described by heading 2008 as “other edible parts of plants, otherwise prepared or preserved…”. Accordingly, it is classified in heading 2008, pursuant to GRI 1.
CBP has consistently classified sweet potatoes which have been processed beyond the scope of heading 0714, HTSUS, in subheading 2008.99.90, HTSUS. See N070000, dated August 26, 2009 (classifying Flame-Roasted Sweet Potatoes with maple seasoning, described as grown, peeled, diced sweet potatoes, roasted, frozen and packed with seasoning containing sugar, modified corn starch, salt, cinnamon, caramel color, spice, ascorbic acid and citric acid in subheading 2008.99.90, HTSUS); NY 815439, dated October 26, 1995 (classifying sweet potato chips, described as sliced sweet potatoes, fried in low temperature vegetable oil and then vacuum sealed into packages in subheading 2008.99.90, HTSUS); and see NY 856000, dated October 2, 1990 (classifying a sweet potato paste, (Dulce de Batata) described as 41% sweet potato, 12.5% grape sugar 46% corn syrup, and 5% agar in subheading 2008.99, HTSUS)
Therefore, we affirm NY N233001.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division