OT:RR:CTF:FTM H325964 TSM
Center Director
U.S. Customs and Border Protection
Agriculture and Prepared Products
Center of Excellence and Expertise
6601 N.W. 25 St., Suite 261
Miami, Florida 33122
Attn: Cynthia Michaud, Import Specialist
Re: Application for Further Review of Protest No. 1803-22-102342; Tariff Classification of Frozen Risottos
Dear Center Director:
The following is our decision with respect to the Application for Further Review of Protest No. 1803-22-102342, timely filed by Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP on February 8, 2022, on behalf of [ ] (hereinafter “Protestant”), regarding the tariff classification of certain frozen risottos under the Harmonized Tariff Schedule of the United States (“HTSUS”). A teleconference was held with the Protestant’s counsel on November 2, 2022.
Protestant has requested that the company’s name (Protestant’s name) be treated as confidential. Inasmuch as the request conforms to the requirements of 19 C.F.R. § 177.2(b)(7), Protestant’s request for confidentiality is approved. The information contained within brackets in this decision will not be released to the public and will be withheld from published versions of this decision.
FACTS:
At issue are three varieties of frozen risottos, described as asparagus risotto, mushroom risotto, and spelt risotto. The Protestant states that “[t]he products contain only par cooked, or partially cooked grain, and the consumer must cook the products on the stove or in the microwave before they can be consumed.” Specifically, the cooking instructions found on the product labels instruct the consumer to cook the products on the stove top as follows: the asparagus risotto over medium heat for 2 minutes, the spelt risotto over medium heat for 6 to 7 minutes, and the mushroom risotto on high heat for 6 to 7 minutes. Images of the packaging for each of the risottos, as well as information concerning the percentages of ingredients contained in each of the risottos, were provided by the Protestant as exhibits. In addition, the Protestant provided a signed statement from the manufacturer, certifying that the three risottos at issue are labeled as the mushroom risotto, asparagus risotto, and spelt risotto, and providing additional details about the products.
Consistent with the information provided, the risottos contain the following ingredients:
The asparagus risotto: precooked rice 49.34%, rehydrated whey 19.87%, asparagus 15.44%, cream 2.65%, onion 2.65%, water 2.48%, hard grating cheese 2.21%, sunflower seed oil 1.10%, wheat flour 1.10%, butter 0.88%, eggs 0.66%, celery 0.66%, tapioca starch 0.44%, vegetable broth 0.28%, garlic 0.11%, salt 0.11%, white pepper 0.003%, and nutmeg 0.003%.
The mushroom risotto: precooked rice 55.07%, champignon mushrooms 15.89%, water 9.16%, milk 8.42%, cream 3.82%, porcini mushrooms 2.33%, sunflower seed oil 1.57%, wheat flour 1.27%, extra virgin olive oil 0.72%, white wine 0.51%, parsley 0.47%, onion 0.42%, garlic 0.04%, salt 0.22%, natural extract of porcini mushroom 0.04%, white pepper 0.02%, bay leaf 0.01%, and nutmeg 0.002%.
The spelt risotto: precooked spelt 49.34%, skimmed milk 11.16%, pumpkin 6.65%, zucchini 5.51%, turnip greens 5.51%, chickpeas 5.29%, provola cheese 5.24%, water 5.00%, carrot 1.99%, hard grating cheese 1.58%, wheat flour 0.97%, sunflower seed oil 0.68%, butter 0.44%, salt 0.28%, onion 0.19%, wheat starch 0.14%, garlic 0.01%, yeast extract 0.01%, cilantro 0.008%, rosemary 0.006%, white pepper 0.004%, and nutmeg 0.001%.
The subject merchandise covers one entry, entered on November 9, 2020, under subheading 1902.30.00, HTSUS, which provides for “Pasta, whether or not cooked or stuffed (with meat or other substances) or otherwise prepared, such as spaghetti, macaroni, noodles, lasagna, gnocchi, ravioli, cannelloni; couscous, whether or not prepared: Other pasta.” The subject entry was liquidated on October 29, 2021, under subheading 1904.90.01, HTSUS, which provides for “Prepared foods obtained by the swelling or roasting of cereals or cereal products (for example, cornflakes); cereals (other than corn (maize)) in grain form or in the form of flakes or other worked grains (except flour, groats and meal), pre-cooked or otherwise prepared, not elsewhere specified or included: Other.” In its Protest, dated February 8, 2022, Protestant argued that the merchandise at issue is classified in subheading 2106.90.98, HTSUS, which provided for “Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Other.” Specifically, Protestant argued the following:
Explanatory Note (D) to heading 1904 excludes the frozen risottos at issue from classification in that heading, providing in relevant part that “[t]his group includes pre cooked or otherwise prepared cereals in grain form … for example, products consisting of pre cooked rice to which other ingredients such as vegetables or seasonings have been added, provided that these other ingredients do not alter the character of the products as rice preparations.” Emphasis added. In this regard, Protestant claimed that “the grains included in the subject risottos are only par-cooked” and therefore do “not meet the ‘pre-cooked’ rice standard.” The Protestant also claimed that “based on the ingredient percentages in the subject risottos, the grain content is significantly altered by the inclusion of vegetables” resulting in principally vegetable, rather than rice, dishes.
The frozen risottos at issue are classified in heading 2106 consistent with Explanatory Note (A) to this heading, which provides in relevant part that “[p]rovided that they are not covered by any other heading of the Nomenclature, this heading covers [p]reparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk, etc.), for human consumption.” The Protestant claimed that because the vegetable risottos at issue require further preparation for human consumption and meet the guidelines of Explanatory Note (A) to heading 2106, they are classified in heading 2106, HTSUS.
Classification of the frozen risottos at issue in subheading 1904.90.01, HTSUS, is inconsistent with CBP’s prior rulings, specifically with Headquarters Ruling Letter (“HQ”) 953651, dated June 16, 1993, and New York Ruling Letter (“NY”) G88476, dated March 29, 2001.
ISSUE:
What is the tariff classification of the subject frozen risottos?
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification, applicable rate and amount of duties chargeable. The protest was timely filed on February 8, 2022, within 180 days of liquidation of the entries. See 19 U.S.C. § 1514(c)(3).
Further review of protest no. 1803-22-102342 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 HQ 953651, dated June 16, 1993, and NY G88476, dated March 29, 2001.
Classification under the HTSUS is determined in accordance with 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 GRI 2 through 6 may then be applied in order.
The 2020 HTSUS provisions under consideration are as follows:
1904 Prepared foods obtained by the swelling or roasting of cereals or cereal products (for example, cornflakes); cereals (other than corn (maize)) in grain form or in the form of flakes or other worked grains (except flour, groats and meal), pre-cooked or otherwise prepared, not elsewhere specified or included:
* * *
1904.90.01 Other
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2106 Food preparations not elsewhere specified or included:
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The Harmonized Commodity Description and Coding System Explanatory Notes
(“ENs”) constitute the “official interpretation of the Harmonized System” at the international level. See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). 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 id.
The 2017 EN to 19.04 provides in relevant part:
(D) Other cereals, other than maize (corn), pre-cooked or otherwise prepared.
This group includes pre cooked or otherwise prepared cereals in grain form (including broken grains). Thus, the group covers, for example, rice which has been pre cooked either fully or partially and then dehydrated, with a consequential modification of the grain structure. Fully pre cooked rice needs only to be soaked in water and brought to the boil before consumption while partially pre cooked rice must be boiled for 5 to 12 minutes prior to consumption. Similarly, the group covers, for example, products consisting of pre cooked rice to which other ingredients such as vegetables or seasonings have been added, provided that these other ingredients do not alter the character of the products as rice preparations.
* * *
The 2017 EN to 21.06 provides in relevant part:
Provided that they are not covered by any other heading of the Nomenclature, this heading covers:
Preparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk, etc.), for human consumption.
Preparations consisting wholly or partly of foodstuffs, used in the making of beverages or food preparations for human consumption. The heading includes preparations consisting of mixtures of chemicals (organic acids, calcium salts, etc.) with foodstuffs (flour, sugar, milk, powder, etc.), for incorporation in food preparations either as ingredients or to improve some of their characteristics (appearance, keeping qualities, etc.) (see the General Explanatory Note to Chapter 38).
* * *
Consistent with the EN to 19.04, heading 1904, HTSUS, covers cereals in grain form, such as rice, which has been pre cooked either fully or partially. In accordance with the EN to 19.04, “[f]ully pre cooked rice needs only to be soaked in water and brought to the boil before consumption, while partially pre cooked rice must be boiled for five to twelve minutes prior to consumption.” The EN to 19.04 states that heading 1904, HTSUS, also covers “pre cooked rice to which other ingredients such as vegetables or seasonings have been added, provided that these other ingredients do not alter the character of the products as rice preparations.”
Upon review, we find that the frozen risottos at issue contain partially cooked rice or spelt, which require between two and seven minutes of additional cooking by the consumer before consumption. As such, the rice and spelt are pre-cooked within the meaning of the EN to 19.04. Although the Protestant argued that the grains included in the subject risottos are only par-cooked and therefore do not meet the “pre-cooked” rice standard, we disagree. The EN to 19.04 provides for cereals which have been pre cooked either fully or partially, and which may require up to twelve minutes of additional cooking time. We find that the rice and spelt at issue clearly meet the “pre-cooked” standard prescribed by the EN to 19.04.
The EN to heading 19.04 also provides that the heading covers pre cooked rice “to which other ingredients such as vegetables or seasonings have been added, provided that these other ingredients do not alter the character of the products as rice preparations.” In this regard, Protestant argues that, “based on the ingredient percentages in the subject risottos, the grain content is significantly altered by the inclusion of vegetables” resulting in principally vegetable, rather than rice, dishes. We disagree. Upon review of the ingredient percentages provided by the Protestant, we found that the predominant ingredient in each of the three risottos is either rice or spelt. Specifically, the asparagus risotto contains 49.34% rice, the mushroom risotto contains 55.07% rice, and the spelt risotto contains 49.34% spelt. However, all three risottos contain much a lower percentage of vegetables. Specifically, the asparagus risotto contains 18.86% vegetables (consisting of the asparagus, onion, celery, and garlic), the mushroom risotto contains 19.15% vegetables (consisting of the champignon mushrooms, porcini mushrooms, parsley, onion, and garlic), and the spelt risotto contains 25.15% vegetables (pumpkin, zucchini, turnip greens, chickpeas, carrot, onion, and garlic). We find these percentages of vegetables to be insufficient to significantly alter the character of the grain risottos and result in primarily vegetable dishes. Accordingly, we conclude that the frozen risottos at issue are rice preparations within the meaning of the EN to 19.04. Therefore, they are classified in heading 1904, HTSUS.
Although the Protestant argues that classification of the frozen risottos at issue in heading 1904, HTSUS, is inconsistent with HQ 953651, and NY G88476, we disagree. Specifically, the Protestant argues that although the risottos under consideration here require less cooking time than the products at issue in HQ 953651, they are nevertheless inedible in their condition as imported and require further cooking before consumption. According to the Protestant, the fact that the subject risottos are “somewhat more par cooked” is not relevant. This is incorrect. In HQ 953651, CBP determined that because the par cooked rice needed to be cooked in boiling water for an additional 20 to 25 minutes, it could “not be considered precooked or otherwise prepared.” The EN to 19.04 provides for rices which have been pre cooked either fully or partially, and which may require up to twelve minutes of additional cooking time. The frozen risottos at issue here only require between two and seven minutes of additional cooking. Therefore, the subject risottos meet the standard prescribed by the EN to 19.04, whereas, under the 2017 EN language, the two rice products of HQ 953651 would not be classifiable under heading 1904, HTSUS. With regard to NY G88476, we note that at issue in that ruling, in relevant part, were two vegetable and rice preparations, one containing approximately 46% rice and 46% vegetables, and another one containing approximately 45% rice and 51% vegetables. Based on those percentages, rice was not found to be the predominant ingredient in those preparations. In contrast, as discussed above, the predominant ingredient in each of the three risottos at issue here is either rice or spelt.
Heading 2106, HTSUS, is a basket provision covering “[f]ood preparations not elsewhere specified or included.” Because we have determined that the frozen risottos at issue are classified in heading 1904, HTSUS, heading 2106, HTSUS, cannot be considered.
Based on the foregoing, we conclude that the frozen risottos at issue are classified under heading 1904, HTSUS, and specifically in subheading 1904.90.01, HTSUS, which provides for “Prepared foods obtained by the swelling or roasting of cereals or cereal products (for example, cornflakes); cereals (other than corn (maize)) in grain form or in the form of flakes or other worked grains (except flour, groats and meal), pre-cooked or otherwise prepared, not elsewhere specified or included: Other.” See HQ 967056, dated June 16, 2004 (classifying three frozen rice-based food preparations composed of pre-cooked rice (53%, 46.6%, and 44.7%, respectively), a myco-protein product, vegetables, and flavorings, in subheading 1904.90.01, HTSUS).
HOLDING:
By application of GRI 1 and 6, the frozen risottos are classified under heading 1904, HTSUS, and specifically in subheading 1904.90.01, HTSUS, which provides for “Prepared foods obtained by the swelling or roasting of cereals or cereal products (for example, cornflakes); cereals (other than corn (maize)) in grain form or in the form of flakes or other worked grains (except flour, groats and meal), pre-cooked or otherwise prepared, not elsewhere specified or included: Other.” The 2020 column one general rate of duty is 14% ad valorem.
You are instructed to DENY the protest.
You are instructed to notify the Protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. 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 U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division