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HQ 955091


February 9, 1994

CLA-2 CO:R:C:F 955091 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 1209.91.8055

Mr. Richard J. Sullivan
President
Association of Food Industries, Inc.
5 Ravine Drive
P.O. Box 776
Matawan, NJ 07747

RE: Request for Reconsideration of HRL 954317 concerning the tariff classification of hulled pumpkin seeds.

Dear Mr. Sullivan:

This letter is in response to your request for a reconsideration of Headquarters Ruling Letter (HRL) 954317, dated August 5, 1993, regarding the classification of hulled pumpkin seeds.

FACTS:

On August 5, 1993, in response to your initial request for a ruling as to the proper classification of hulled pumpkin seeds, Customs issued HRL 954317, which held that hulled pumpkin seeds are classifiable under the provision for other seeds, fruits and spores, of a kind used for sowing, other vegetable seeds, in subheading 1209.91.8080, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). This subheading, now renumbered to 1209.91.8055, is dutiable at a column one general rate of 3.3 cents per kg.

This office received your request for reconsideration of HRL 954317 on September 28, 1993. In this request, you assert that the proper classification of hulled pumpkin seeds would be under subheading 1212.99.0000 HTSUSA, as "Locust beans, seaweeds and other algae, sugar beet and sugar cane, fresh or dried, whether or not ground; fruit stones and kernels and other vegetable products (including unroasted chicory roots of the variety Cichorium intybus sativum) of a kind used primarily for human consumption, not elsewhere specified or included: Other: Other." Subheading 1212.99.0000 HTSUSA is duty free at the column one general rate.

ISSUE:

Whether the hulled pumpkin seeds should be classified in the provision for other seeds, fruits and spores, of a kind used for sowing, or the provision for other vegetable products of a kind used primarily for human consumption.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI's). As stated in GRI 1, the classification is determined first in accordance with the terms of the headings which must be read in conjunction with the relative 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 in their appropriate order. The Explan atory Notes to the Harmonized Commodity Description and Coding System (EN's), facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

The product in question, hulled pumpkin seeds, is a vegetable product which can be used for human consumption. It is important to note, however, that subheading 1212.99.0000 HTSUSA provides for "...other vegetable products of a kind used primarily for human consumption, not elsewhere specified or included (emphasis supplied)." As such, pumpkin seeds cannot be classified pursuant to subheading 1212.99.0000 HTSUSA because they are specifically provided for under subheading 1209.91.8055 HTSUSA which covers other seeds, fruits and spores of a kind used for sowing.

Although you have submitted statistics to demonstrate that pumpkin seeds imported into the United States are used primarily for human consumption and not for sowing, Note 3 to Chapter 12 of the HTSUSA indicates that, "For the purposes of heading 1209, ...vegetable seeds,...are to be regarded as seeds of a kind used for sowing (emphasis supplied)." Thus, regardless of the intended use of the product, Legal Note 3 to Chapter 12, requires us to consider these hulled pumpkin seeds as "seeds of a kind used for sowing."

HOLDING:

The hulled pumpkin seeds are classified in subheading 1209.91.8055 HTSUSA, which provides for "Seeds, fruits and spores, of a kind used for sowing: Other: Other: Pumpkin" dutiable at the general column one rate of 3.3 cents/kg. Accordingly, HRL 954317, dated August 5, 1993, is affirmed.

Sincerely,


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