OT:RR:CTF:FTM HQ H316992 TSM
Center Director
Agriculture and Prepared Products
Center of Excellence and Expertise U.S. Customs and Border Protection
6601 N.W. 25 St., Suite 261 Miami, Florida 33122
Attn: India McRae, Import Specialist
Re: Application for Further Review of Protest No. 3901-20-106989; Tariff Classification of Dehydrated Sliced Winterhecke
Dear Center Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 3901-20-106989, timely filed by the law firm of Junker & Nakachi, P.C. on February 19, 2020, on behalf of their client, BCFoods, Inc. (hereinafter “Protestant”), regarding the tariff classification of dehydrated sliced Winterhecke under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The merchandise at issue is dehydrated sliced Winterhecke, described by the Protestant as follows:
The subject entries of goods are dehydrated and sliced Winterhecke. Winterhecke is a plant within the broad genus “Allium.” Allius also encompasses garlic, leeks and onions. Winterhecke is a species different from leeks, garlic and onion and, just as those species are classified differently, so too is Winterhecke. The dried, sliced Winterhecke are imported in bulk and sold in bulk, for use as a spice for seasoning soups and sauces, and the like.
The subject protest covers seven entries, entered between February 23, 2017 and August 18, 2018, under subheading 0712.90.8580, HTSUSA, which provides for “Dried vegetables, whole, cut, sliced, broken or in powder, but not further prepared: Other vegetables; mixtures of vegetables: Other vegetables; mixtures of vegetables: Other.” The entries were liquidated between August 23, 2019 and November 8, 2019, under subheading 0712.20.4000, HTSUSA, which provides for “Dried vegetables, whole, cut, sliced, broken or in powder, but not further prepared: Onions: Other.”
In the protest, Protestant argues that the dehydrated sliced Winterhecke at issue is classified under subheading 0910.99.6000, HTSUSA, which provides for “Ginger, saffron, turmeric (curcuma), thyme, bay leaves, curry and other spices: Other spices: Other: Other: Other.” In support of this argument, Protestant claims that although Winterhecke is a plant within the broad genus “Allium,” which encompasses garlic, leeks and onions, it is a species different from those plants and is classified differently. Protestant further asserts that Winterhecke is neither factually nor legally an “onion,” “spring onion,” nor “leek.” Protestant argues that the dried, sliced Winterhecke is commonly used and regarded by experts as a “spice,” and is classified as a “spice.” In support, Protestant also filed the following documents as exhibits: (1) expert witness testimony showing that Winterhecke is actually used as a spice; (2) references to various sources showing that the labeling of Winterhecke as “spring onion” or “leek” are commonly used misnomers, which are not to be used for purposes of determining the “common meaning” for tariff purposes; and (3) the decision by the Court of International Trade in Mondiv, Div. of Lassonde Specialties Inc. v. United States, 219 F. Supp. 3d 1364 (Ct. Int’l Trade 2017), to further support its claim that the dehydrated sliced Winterhecke at issue is classified as a spice.
In the protest, Protestant also argues that if classification under subheading 0910.99.6000, HTSUSA, is not appropriate, the dehydrated sliced Winterhecke at issue is alternatively classified under subheading 0712.90.8580, HTSUSA, as entered.
ISSUE:
What is the tariff classification of the dehydrated sliced Winterhecke under consideration?
LAW AND ANALYSIS:
Initially, we note that the 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 of the entries. (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. 3901-20-106989 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 (b) because Protestant alleges that the decision against which the protest was filed involves 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 under the HTSUS is determined 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.
The 2017-2018 HTSUS provisions under consideration are as follows:
0712 Dried vegetables, whole, cut, sliced, broken or in powder, but not further prepared:
0712.20 Onions:
* * *
0712.20.4000 Other
* * *
0712.90 Other vegetables; mixtures of vegetables:
* * *
0712.90.85 Other vegetables; mixtures of vegetables
* * *
0712.90.8580 Other
* * *
0910 Ginger, saffron, turmeric (curcuma), thyme, bay leaves, curry and other spices:
* * *
Other spices:
* * *
0910.99 Other:
* * *
Other:
* * *
0910.99.6000 Other
* * *
Note 2 to Chapter 7, HTSUS, provides in relevant part as follows:
In headings 0709, 0710, 0711 and 0712 the word “vegetables” includes edible mushrooms, truffles, olives, capers, marrows, pumpkins, eggplants (aubergines), sweet corn (Zea mays var. saccharata), fruits of the genus Capsicum (peppers) or of the genus Pimenta (e.g., allspice), fennel, parsley, chervil, tarragon, cress and sweet marjoram (Marjorana hortensis or Origanum marjorana).
* * *
Note 3 to Chapter 7, HTSUS, provides in relevant part as follows:
Heading 0712 covers all dried vegetables of the kinds falling in headings 0701 to 0711, other than:
Dried leguminous vegetables, shelled (heading 0713);
Sweet corn in the forms specified in headings 1102 to 1104;
Flour, meal, powder, flakes, granules and pellets of potatoes (heading 1105);
Flour, meal and powder of the dried leguminous vegetables of heading 0713 (heading 1106).
* * *
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).
EN 3 to Chapter 7 provides:
Heading 07.12 covers all dried vegetables of the kinds falling in headings 07.01 to 07.11, other than:
dried leguminous vegetables, shelled (heading 07.13);
sweet corn in the forms specified in headings 11.02 to 11.04;
flour, meal, powder, flakes, granules and pellets of potatoes (heading 11.05);
flour, meal and powder of the dried leguminous vegetables of heading 07.13 (heading 11.06).
* * *
The General EN to Chapter 7 provides, in relevant parts, as follows:
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.
* * *
The expression “frozen” means that the product has been cooled to below the product’s freezing point until it is frozen throughout.
Unless the context otherwise requires, vegetables of this Chapter may be whole, sliced, chopped, shredded, pulped, grated, peeled or shelled.
* * *
EN to heading 07.12 provides in relevant part as follows:
This heading covers vegetables of headings 07.01 to 07.11 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 General EN to Chapter 9 provides, in relevant parts, as follows:
This Chapter covers:
Coffee, tea and maté.
Spices, i.e., a group of vegetable products (including seeds, etc.), rich in essential oils and aromatic principles, and which, because of their characteristic taste, are mainly used as condiments.
These products may be whole or in crushed or powdered form.
* * *
This Chapter further excludes:
Vegetables (e.g., parsley, chervil, tarragon, cress, sweet marjoram, coriander and dill) of Chapter 7.
* * *
EN to heading 09.10 provides in relevant part as follows:
The heading includes:
Ginger (including fresh ginger, provisionally preserved in brine, unsuitable in that state for immediate consumption); ginger preserved in syrup is excluded (heading 20.08).
Saffron, which consists of the dried stigmas and styles of the flowers of the saffron crocus (Crocus sativus). It may also be presented as an orange red powder with a strong, penetrating and agreeable odour. It contains a colouring element of little stability. It is used as a seasoning and also in confectionery and medicine.
Turmeric or curcuma (Curcuma longa), sometimes incorrectly called “Indian saffron” because of its vivid yellow colour; the curcuma rhizome is marketed either whole or, more often, in powder form.
Thyme (including wild thyme) and bay leaves, whether or not dried.
Curry powder, consisting of a mixture in variable proportions of turmeric (curcuma), of various other spices (e.g., coriander, black pepper, cumin, ginger, cloves) and of other flavouring substances (e.g., garlic powder) which, although not falling in this Chapter, are often used as spices.
Dill seed (Anethum graveolens), and fenugreek seed (Trigonella foenum graecum).
Mixtures of the products of headings 09.04 to 09.10 when the separate ingredients of the mixture fall in different headings, e.g., mixtures of pepper (heading 09.04) with products of heading 09.08.
* * *
Heading 0712, HTSUS, provides for “Dried vegetables, whole, cut, sliced, broken or in powder, but not further prepared.” Note 3 to Chapter 7 and EN to heading 0712 further provide in relevant parts that heading 0712 “covers all dried vegetables of the kinds falling in headings 0701 to 0711.” Accordingly, to determine whether the dehydrated sliced Winterhecke at issue is classified under heading 0712, HTSUS, we must first consider its tariff classification in fresh form, and specifically whether it is a vegetable of the kind falling in headings 0701 to 0711, HTSUS.
As noted above, the dehydrated sliced Winterhecke at issue was liquidated under subheading 0712.20, HTSUS, which provides for “Dried vegetables…: Onions.” In fresh form, onions are classified under heading 0703, HTSUS, which provides for “Onions, shallots, garlic, leeks and other alliaceous vegetables, fresh or chilled.” We note that because the term “alliaceous” is not defined by the HTSUS or the relevant notes, we must consult dictionaries to ascertain its meaning. Dictionary.com defines “alliaceous” as “belonging to the genus Allium.” The Merriam-Webster Dictionary defines “Allium” as “any of a large genus (Allium) of bulbous herbs of the lily family including the onion, garlic, chive, leek, and shallot.” The genus “Allium” belongs to the “Liliaceae” (also referred to as the lily family) family of plants. It includes more than 800 species of which only a few have been cultivated as foods.
Protestant argues that although Winterhecke is a plant within the broad genus “Allium,” which encompasses garlic, leeks and onions, it is a species different from those plants and is classified differently. Protestant further claims that the labeling of Winterhecke as “spring onion” or “leek” are commonly used misnomers, which are not to be used for purposes of determining the “common meaning” for tariff purposes.
The terms “onion” and “Winterhecke” are not defined by the HTSUS or the relevant notes. Accordingly, we must consult dictionaries to ascertain their meaning. The Merriam-Webster Dictionary defines “onion” as “a widely cultivated Asian herb (Allium cepa) of the lily family with pungent edible bulbs.” This definition shows that onions are the “Allium cepa” species of the “Liliaceae” family to which the genus “Allium” belongs. “Winterhecke” is the Germanic name for the Allium fistulosum plant, translated into English as, among others, “Welsh onion,” “spring onion,” or “Japanese bunching onion.” The Merriam-Webster Dictionary defines “Welsh onion” as “an Asiatic onion (Allium fistulosum) with tufted glabrous foliage and slender bulbs that is sometimes cultivated for its leaves which are used in seasoning and its bulbs which are used as early green onions.” While research shows that multiple terms are used to translate “Winterhecke” into English, it is undisputed that “Winterhecke” belongs to the “Allium fistulosum” species of the “Liliaceae” family, genus “Allium.”
Consistent with the foregoing, we conclude that both onions and Winterhecke belong to the Liliaceae family and to the genus Allium. However, while onions belong to the Allium cepa species, Winterhecke belongs to the Allium fistulosum species. Therefore, we agree with the Protestant’s argument that Winterhecke is a species different from onions, garlic, or leeks. Nevertheless, both are alliaceous vegetables belonging to the genus Allium. Both onions and other alliaceous vegetables are provided for eo nomine in heading 0703, HTSUS, when in fresh form. Consequently, consistent with Note 3 to Chapter 7, HTSUS, which provides that heading 0712 “covers all dried vegetables of the kinds falling in headings 0701 to 0711,” they are classified in heading 0712, HTSUS, when in dried, or dehydrated, form.
Heading 0910, HTSUS, provides for “Ginger, saffron, turmeric (curcuma), thyme, bay leaves, curry and other spices.” Protestant argues that the dehydrated sliced Winterhecke at issue is classified under heading 0910, HTSUS, because it is actually used as a spice. In this regard, we note that consideration of “actual use” is only appropriate when tariff classification under an HTSUS provision is controlled by use. See E.M. Chems v. United States, 20 CIT 382, 386 (Ct. Int’l. Trade 1996). Specifically, classification is dependent on a demonstration of actual use when words such as “to be used for” appear in connection with a tariff provision. See Clarendon Mktg v. United States, 955 F.Supp 1501, 1504-1505 (Ct. Int’l Trade 1997), aff’d 144 F.3d 1464, 1467 (Fed. Cir. 1998). Upon review of heading 0910, HTSUS, we find that it is not a use provision. Rather, it is an eo nomine provision describing the items that it provides for by name. Accordingly, evidence of actual use of Winterhecke as a spice is not relevant.
In the protest, Protestant also argues that the court’s decision in Mondiv, Div. of Lassonde Specialties Inc. v. United States, 219 F. Supp. 3d 1364 (Ct. Int’l Trade 2017), supports a finding that the dehydrated sliced Winterhecke at issue is classified as a spice. Upon review, we disagree. First, we note that the merchandise at issue in Mondiv was prima facie classifiable under two headings. Therefore, application of GRI 3(a) was necessary to determine which of the two headings provided the most specific description. However, with regard to the dehydrated sliced Winterhecke at issue, because it is only classifiable under one heading under GRI 1, resort to GRI 3(a) is not warranted. This is because the foregoing analysis supports a finding that the dehydrated sliced Winterhecke under consideration is classified in heading 0712, HTSUS, which provides for “Dried vegetables, whole, cut, sliced, broken or in powder, but not further prepared.” It is not, however, classified under heading 0910, HTSUS. EN to Chapter 9 provides in relevant part that Chapter 9 excludes vegetables of Chapter 7. Therefore, the dehydrated sliced Winterhecke at issue cannot also be described by heading 0910, HTSUS.
Based on the foregoing, we conclude that the dehydrated sliced Winterhecke at issue is classified under heading 0712, HTSUS, which provides for “Dried vegetables, whole, cut, sliced, broken or in powder, but not further prepared.” However, although it was liquidated under subheading 0712.20.4000, HTSUSA, which provides for “Dried vegetables, whole, cut, sliced, broken or in powder, but not further prepared: Onions: Other,” we disagree with this classification. As discussed above, we agree with the Protestant’s argument that Winterhecke is a species different from onions and is classified differently. Specifically, it is classified under subheading 0712.90.8580, HTSUSA, which provides for “Dried vegetables, whole, cut, sliced, broken or in powder, but not further prepared: Other vegetables; mixtures of vegetables: Other vegetables; mixtures of vegetables: Other.”
HOLDING:
By application of GRIs 1 and 6, the dehydrated sliced Winterhecke at issue is classified in subheading 0712.90.8580, HTSUSA, which provides for “Dried vegetables, whole, cut, sliced, broken or in powder, but not further prepared: Other vegetables; mixtures of vegetables: Other vegetables; mixtures of vegetables: Other.” The 2017-2018 column one general rate of duty is 8.3%.
You are instructed to GRANT 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 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 CBP website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
For Craig T. Clark, Director
Commercial and Trade Facilitation Division