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HQ 959003




May 31, 1996

CLA-2 RR:TC:FC 959003 JGH

CATEGORY: CLASSIFICATION

TARIFF NO.: 2008.19.2000

Port Director
U.S. Customs Service
610 S. Canal Street
Chicago, Illinois 60607

RE: Decision on Application for Further Review of Protest No. 3901-95-101692, on the Classification of Hazelnuts

Dear Sir:

This protest was filed at your port on 1994 and 1995 entries of hazelnuts from Turkey, which were liquidated in 1995.

FACTS:

The merchandise at issue is hazelnuts from Turkey which were entered in 1994 and 1995, under the provision for other Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Nuts, peanuts (ground nuts) and other seeds, whether or not mixed together: Other, including mixtures: Other, in subheading 2008.19.9090, HTSUS. Products of Turkey classifiable under this provision were duty free under the Generalized System of Preferences(GSP) at the time of entry.

Customs liquidated the entries under the provision for filberts under the same heading in subheading 2008.19.2000, HTSUS, a provision not entitled to the GSP. In one document they were described as blanched hazelnut kernels valued at $258/100kg in 25 kg vacuum packs.

ISSUE:

Classification of hazelnuts, prepared and preserved under the HTSUS.

LAW AND ANALYSIS:

In behalf of the importer it is claimed that in Chapter 8, HTSUS, hazelnuts and filberts are specifically described under heading 0802 - "Other nuts, fresh or dried, whether or not shelled or peeled..Hazelnuts or filberts (Corylus spp.)"; while in chapter 20, heading 2008, only filberts are provided for (in subheading 2008.19.2000). This, it is asserted, means that hazelnuts are not classified in that subheading, but in the basket (2008.19.9090). It is acknowledged that the filbert and hazelnut are of the same genus but are of different families.

As the court has pointed out in numerous cases, where a tariff term is not clearly defined in the tariff or the legislative history, the correct meaning of the term is generally resolved by ascertaining the common and commercial meaning. W.Y. Moberly, Inc. v. United States, 924 F.2d 232 (Fed. Cir. 1991). In order to determine the common meaning of a tariff term, the court may rely on its own understanding of the term, as well as consult dictionaries, lexicons and scientific authorities. Brookside Veneers, Ltd. v. United States, 847 Fed.2d 786 (1988). A clear consensus of definitions from the most popular dictionaries and encyclopedias shows that the filbert and hazelnut are the same nut. Typical is the Random House Dictionary of the English Language which includes in the definition of Hazel, the hazelnut or filbert. Webster's New International Dictionary notes that the hazelnut is also known as the filbert. It is common to these definitions that they are identified as being of the corylus genus, as they are defined in the HTSUS provision. The conclusion is therefore inescapable that the common and commercial name for these nuts in the U.S. is either hazelnut or filbert.

Since it is the definition of the tariff commodity in the United States which is determinative, it is interesting to note that the USITC publication under the Tariff Act of 1930 on the competitive status between the U.S. and foreign filbert industries refers to the nuts as "Filberts (also known as hazelnuts)..". Also in 7 CFR, section 999.400, Agricultural Marketing Service, USDA, "Regulation governing the importation of filberts." (a) Definitions. (1) Filberts means filberts or hazelnuts. As the court noted in Foodcomm International v. United States, Slip Op. 95-202 (1996), in regard to the definition of the terms "beef" and "veal", it is settled that the definition of a term contained in a statute or regulation dealing with non-tariff matters does not determine the common meaning of that term for tariff purposes. However, the court went on to state, that where the definition contained in the regulations is consistent with the definitions consulted by the court, they provide support for the definition.

Here the USDA definition of hazelnut as filberts is the same, and, in this regard, consistent with the dictionaries definition. Thus, in the U.S., hazelnuts and filberts are the same nut.

Hazelnuts are classifiable as filberts in subheading 2008.19.200, HTSUS.

HOLDING:

You are directed to deny the protest in full. A copy of this decision should be furnished the protestant with the Form 19 Notice of Action.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-65, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Ruling 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
Appeals Division

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