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HQ 958495




November 21, 1995

CLA-2 RR:TC:FC 958495 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 1209.91.8055

Port Director of Customs
U.S. Customs Service
300 S. Ferry St.
Terminal Island, CA 90731

RE: Application for Further Review of Protest 2704-95-102052, dated June 28, 1995, Concerning Chinese Snow White Pumpkin Seeds

Dear Ms. Adams:

This ruling is on a protest that was filed against a decision of April 7, 1995, issued by your port, concerning the subject pumpkin seeds.

FACTS:

The merchandise under consideration is Chinese snow white pumpkin seeds in the shell. The importer has noted that the subject seeds are of substantially lesser value than pumpkin seeds utilized for sowing, that they do not meet the minimum germination standard set by the Federal Seed Act, and that any germination requirement is destroyed by various processes undertaken subsequent to importation.

ISSUE:

What is the proper classification for the subject pumpkin seeds?

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. - 2 -

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 headings and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

We note that the entry covering the pumpkin seeds was liquidated in subheading 1209.91.8055, HTSUSA, which provides for seeds, fruits and spores, of a kind used for sowing, other, vegetable seeds, fruits and spores, of a kind used for sowing, other, vegetable, other, pumpkin. The protestant suggests that the pumpkin seeds should be classified in subheading 1404.90.0000, HTSUSA, which provides for vegetable products not elsewhere specified or included, other, or in subheading 1207.99.0000, HTSUSA, which provides for oil seeds and oleaginous fruits, whether or not broken, other, other.

The protestant contends that the pumpkin seeds will be used for human consumption and not for sowing, and that the processing of the pumpkin seeds after importation renders them incapable of germination. We, however, note that neither actual nor principle use, whether commercial or non-commercial, governs the classification of the pumpkin seeds. The seeds do not even have to be capable of germinating. In this regard we note legal note 3 to Chapter 12, HTSUSA, provides: "For the purposes of heading 1209,...vegetable seeds...are seeds of a kind used for sowing.'" In view of the above and since merchandise is classified in its condition at the time of importation, the processing that occurs subsequent to importation and the intended use of the product do not impact on the classification of the seeds. The Federal Seed Act provision regarding the categorization of seeds as capable of germinating is inapplicable to the tariff classification of the seeds.

In this regard, we note that the Explanatory Notes to the Harmonized System (EN), which represents the views of the international classification experts, provides in heading 12.09:

This heading covers all seeds, fruit and spores or a kind used for sowing. It includes such products even if they are no longer capable of germination.

In Headquarters Ruling Letter (HRL) 955091 of February 9, 1994, which covered hulled pumpkin seeds, we noted that although the seeds were used primarily for human consumption, they were, - 3 -
pursuant to the noted legal note and EN, considered as 'seeds of a kind used for sowing.'" Based thereon we concluded that those seeds were classifiable in subheading 1209.91.8055, HTSUSA. We have concluded that such conclusion is appropriate in the instant protest.

This subheading is more specific than subheading 1404.90.0000, HTSUSA, suggested by the importer, which provides for vegetable products not elsewhere specified or included. Also, we do not believe that the instant seeds would be considered a vegetable product of the type specified in that subheading.

We also do not agree that subheading 1207.99.0000, HTSUSA, alternatively suggested by the importer, is an appropriate subheading. In this regard, we note that the General Explanatory Note to Chapter 12 of the Harmonized System provides that "[H]eadings 12.01 to 12.07 cover seeds and fruits of a kind used for the extraction...of edible or industrial oils and fats, whether presented for that purpose, for sowing or for other purposes." We are not aware of pumpkin seeds being used for their oils. We note that the only uses suggested by the importer were human consumption and sowing.

Further, we note that the EN to heading 1207 specifies that "This heading covers seeds and fruits of a kind used for the extraction of edible or industrial oils and fats, other than those specified in headings 12.01 to 12.06 ..." In examining headings 1201 through 1206, we find no mention of pumpkin seeds. The aforementioned EN also specifies that heading 1207 covers multiple additional seeds and nuts. Pumpkin seeds are not contained in that listing. Based on this and the findings in the foregoing paragraph, we have concluded that pumpkin seeds are not covered by heading 1207 or subheading 1207.99.0000, HTSUSA, as suggested by the importer.

HOLDING:

Chinese snow white pumpkin seeds, regardless of the use for which intended or their germination capability, are classifiable in subheading 1209.91.8055, HTSUSA. Merchandise so classifiable is subject to a general rate of duty of 3 cents per kilogram.

Since the classification indicated above is the same as the classification under which the entry was liquidated, you are instructed to deny the protest in full.

A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

In accordance with Section 3A(11)(b) of Customs Directive 099 3553-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be provided by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification

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