HQ H287051


CLA-2 OT:RR:CTF:FTM HQ H287051 TSM

Port Director
Port of San Juan
City View Plaza-Suite 3000
#48 Rd. 165 Km. 1.2
Guaynabo, PR 00968-8000

Attn: Marlon Silva, Import Specialist

Re: Protest and Application for Further Review No. 4909-17-100040; Classification of granulated garlic products.

Dear Port Director:

The following is our decision regarding Protest and Application for Further Review No. 4909-17-100040, timely filed on May 16, 2017, on behalf of TRA Spice Inc. (hereinafter “TRA Spice” 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 inspected, sorted, peeled, washed and sliced; (2) the sliced garlic is dried at a temperature of 50-60 degrees Celsius for 5-6 hours; (3) the sliced, dried garlic is selected, packed, and stored; (4) when a customer places an order, the sliced, dried garlic is toasted at a temperature of 40-50 degrees Celsius for 3-4 hours - the garlic is not toasted beforehand because it will not maintain its toasted quality in storage due to humidity; (5) the processed garlic is chopped, minced, granulated, or powdered according to the customer’s preference; (6) the processed garlic is run through a color-sorting machine for consistency, as well as magnets and metal detectors for safety; (7) the processed garlic is packed and stored for shipment; (8) the processed garlic is subject to a final quality-control test; (9) the processed garlic is shipped to the customer. This is supported by an affidavit from the manufacturer, dated May 14, 2017, certifying the manufacturing process employed.

The subject merchandise was entered on June 2, 2016, 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 November 18, 2016, 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 May 16, 2017, and supplemental submission, dated June 2, 2017, TRA Spice argued that the subject merchandise is classified under subheading 2005.99.97, HTSUS, as entered.

The record contains two CBP laboratory reports which, while indicating moisture level and color index, do not conclude whether the garlic was toasted or not. In addition, the record also contains the following documents, which were submitted by TRA Spice: (1) manufacturing processing chart summarizing the manufacturing process described above (Exhibit E to the Protest of May 16, 2017 and Exhibit 2 to the supplemental submission of June 2, 2017); (2) affidavit from the manufacturer, referenced above, certifying the manufacturing process employed (Exhibit G to the Protest of May 16, 2017 and Exhibit 4 to the supplemental submission of June 2, 2017); and (3) photographs showing the manufacturing process that the garlic products at issue undergo (Exhibit A to the manufacturer’s affidavit, Protest of May 16, 2017 and supplemental submission of June 2, 2017).

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. 4909-17-100040 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 made 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. 

* * *

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

* * *

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, HTSUS, 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 0712, HTSUS, 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 2005, HTSUS, 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).

* * *

The 2016 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

* * *

Upon review of the record, we find that the two CBP laboratory reports, referenced above, do not conclude whether the products at issue were dried or toasted, but report the moisture content of the products. However, the record shows that the granulated garlic products were subjected to an additional manufacturing process beyond simple drying (i.e., removal of the natural water content) provided for in heading 0712, HTSUS. According to the record, after being dried at a temperature of 50-60 degrees Celsius for 5-6 hours, the garlic products at issue are also toasted at a temperature of 40-50 degrees Celsius. It is our view that this additional processing, after drying, makes the garlic products “further prepared” beyond drying. This is consistent with NY N264652, dated June 5, 2015, issued to TRA Spice. In that ruling, CBP reviewed the above-described production process and concluded that the resulting products are garlic products classified in heading 2005, HTSUS. Upon review of the supporting documentation provided by TRA Spice (such as the manufacturing processing chart and affidavit from the manufacturer certifying the manufacturing process employed), we conclude that the record supports a finding that the production process used for preparation of the merchandise at issue is the same as that in NY N264652.

Based on the foregoing, we conclude that the garlic products at issue are classified in heading 2005, HTSUS, and specifically in 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.”

HOLDING:

By application of GRIs 1 and 6, the subject garlic products are classified in 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 2016 column one general rate of duty is 11.2%. You are instructed to ALLOW 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 International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website 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