HQ 0089380 - Request for Further Review of Protest 3304-91-100008, dated April 15, 1991, Concerning Whole Dried Peas - United States International Trade Commision Rulings

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HQ 089380

September 16, 1991

CLA-2 CO:R:C:F 089380

CATEGORY: CLASSIFICATION

TARIFF NO.: 0713.10.10

District Director of Customs
P.O. Box 610
112 West Stutsman
Pembina, North Dakota 58271

RE: Request for Further Review of Protest 3304-91-100008, dated April 15, 1991, Concerning Whole Dried Peas

Dear Mr. Hagerty:

This ruling is on a protest that was filed against your decision in the liquidation of Consumption Entry 144-15310896, dated June 29, 1990.

FACTS:

The article under consideration is peas. Although the article was entered as split peas, a Customs laboratory analyzed the peas and found that they were uncooked dried whole peas not skinned or split. The peas have a germination rate of less than 85 per cent.

ISSUE:

What is the classification of dried whole peas?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods, and if the heading and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

The protestant states that the peas are whole dried peas for animal consumption and not for seeding purposes. Your office advises us that the protestant has supplied a germination certificate stating that the germination rate is less than 85 per cent. The protestant believes that the peas are properly classified in subheading 0713.10.40.80, HTSUSA, as Peas: Other: Other: Other. The entry covering the peas was liquidated under subheading 0713.10.10, HTSUSA, which covers Peas (Pisum sativum): Seeds of a kind used for sowing.

We have considered subheading 0713.10, HTSUSA, as well as the relative explanatory note. Neither the subheading nor the explanatory note provide that the articles to be classified thereunder are to be classified on the basis of principal or actual use. There, in fact, is no requirement that the seeds themselves have to be capable of germinating. As noted in Headquarters Ruling Letter (HRL) 086216 of March 27, 1990, "Seeds of a kind used for sowing" (emphasis added) does not demand that the seeds themselves be actually used to reproduce, or be placed in the ground. The subheading merely suggests their similarity to such seeds. Additional U.S. Note 3 to Chapter 7, HTSUSA, indicates that articles of a kind covered by Chapter 7 can be used for food, for sowing or for planting. Clearly then, the peas under consideration, which are similar to seeds of a kind used for sowing, they are so classifiable.

HOLDING:

The whole dried peas are properly classifiable under subheading 0713.10.10, HTSUSA, and are dutiable at a general rate of 3.3?/kg.

If the peas are goods originating in Canada in accordance with General Note 3(c)(vii)(B), HTSUSA, they may be eligible for a reduced rate of duty, 2.3?/kg, upon compliance with the provisions of the United States - Canada Free Trade Agreement (CFTA) and section 10.301 et seq., Customs Regulations (19 CFR 10.301 et seq.).

Since the rate of duty under the classification indicated above is the same as the liquidated rate, you are instructed to deny the protest in full. A copy of this ruling should be attached to the Form 19 Notice of Action furnished the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division

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