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HQ 961131




December 13, 1999

C.A.-2 RR:CR:GC 961131K

CATEGORY: CLASSIFICATION

TARIFF NO.: 2008.11.45/60

Area Director, New York/Newark Area
U.S. Customs Service
1210 Corbin St.
Elizabeth, N.J. 07201

RE: Protest 1001-97-104609: "Chiao Kao" Peanut Soup

Dear Area Director:

The following is our response to protest 1001-97-104609, filed against your classification under the Harmonized Tariff Schedule of the United States (HTSUS), of "Chiao Kao" peanut soup.

FACTS:

The two consumption entries made in 1996 covering the imported merchandise were liquidated on April 4 and 25, 1997, 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, in subheading 2008.11.60, HTSUS (1996), an over the tariff rate quota provision. A timely protest under 19 U.S.C. 1514 was received on June 30, 1997. The protestant requested reliquidation of the entries under the provision for soups, and broths and preparations therefor in subheading 2104.10.00, HTSUS, a provision not subject to tariff rate quota. In preparing this ruling, consideration was given to arguments presented by counsel for the protestant at a meeting held on April 21, 1998, followed by a further submission dated May 19, 1998. A second sample was submitted on November 4, 1999.

The product consists of peanuts that are peeled, selected, cleaned and boiled in water with sugar in order to create a sweet taste and sterilized in canned retail containers with a net weight of 11.6 ounces. The ingredients consist of sugar (14% by weight), peanuts (18.05%), and water (67.95%). No other ingredients are listed on the sample container submitted and no other ingredients were listed in the submissions. The sample has a plastic cover with a plastic spoon inserted at the top which can be easily removed. A pull up lid permits the consumer to remove the top of the container and consume the product without any further preparation. No instructions are given for further preparations which indicates that the product is intended to be consumed as is in the container. The product is labeled “Peanuts With Soup”.

ISSUE:

Whether the product as described is a "soup" classified in heading 2104, HTSUS, by virtue of Rule 1 of the General Rules of Interpretation (GRI), HTSUS

LAW AND ANALYSIS:

The classification of imported merchandise under the HTSUS is governed by the principles set forth in the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section and chapter notes and, unless otherwise required, according to the remaining GRI's, taken in their appropriate order. Accordingly, we first have to determine whether the product is classified under GRI 1.

Heading 2104, HTSUS, provides for soups and broths and preparations therefor. Heading 2008, HTSUS, provides for 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. Thus, if the product is specified or included in other provisions of the tariff, than it is precluded from coverage in heading 2008.

The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and General Rules of Interpretation of the HTSUS. Although not controlling, the EN's for heading 2104 states that soups and preparations therefor classified in subheading 2104.10 includes:

(1) Preparations for soups or broths requiring only the addition of water, milk, etc. (2) Soups and broths ready for consumption after heating. (Emphasis added.)

These products are generally based on vegetable products (flour, starches, tapioca, macaroni, spaghetti and the like, rice, plant extracts, etc.), meat, meat extracts, fat, fish, crustaceans, molluscs or other aquatic invertebrates, peptone, aminoacids or yeast extract. They may also contain a considerable proportion of salt.

They are generally put up as tablets, cakes, cubes, or in powder or liquid form.

In Headquarters Ruling Letter (HRL) 950776, dated March 11, 1992, involving lotus nut paste, we stated that heading 2104, HTSUS, is regarded as a “use” provision. Additional U.S. Rules of Interpretation, 1(a), HTSUS, states as follows:

A tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use. (Emphasis added.)

The Protestant has the burden to show that the product as imported is principally used in the United States as a soup. The fact that some people may use the product as a soup does not sustain principal use that exceeds all other uses. It is our position that the product, boiled peanuts in water with added sugar (14% by weight) to sweeten the peanuts, is not a soup and/or is not principally used as a soup but as a dessert or a snack.

Joy of Cooking, by Irma S. Rombauer etc., (1997 edition) at page 92, states that “Of course, you can serve soup in anything that will hold it. But over the centuries certain bowls have become traditional for certain soups, and for practical reasons.” The product in question is not intended to be served in a bowl like a soup but it is intended to be consumed from its container. The pull up container and the plastic spoon provides for the consumption of the product from the container without heating. Although a soup may be served cold, generally, as indicated in the EN’s, soups and broths are ready for consumption after heating.

Joy of Cooking at page 92, , in answer to the question “Is Stock Necessary?”, responded, “it depends on the soup”. We note that no stock is added in the ingredients of the product in question although it is suggested that the stock is derived from the boiled peanuts. A receipt for “Georgia Peanut Soup” at pages 103-104, includes chicken stock and other ingredients and is served in warm bowls. The recipe for “Williamsburg Peanut Soup”, Congressional Club Cook Book, 1987, also includes chicken stock.

Under the Tariff Schedules of the United States (TSUS), the predecessor of the HTSUS, we held in HRL 084603, dated September 13, 1974, that shelled peanuts in a light syrup is not a soup but is consumed from the can as a dessert and classified under the provision for peanuts, shelled or otherwise prepared or preserved, in item 145.48, TSUS. We have continued under the HTSUS, to follow this position that the product is not a soup. See New York Ruling Letters A84907 dated June 25, 1996, and C88664 dated June 11, 1998, and HRL 089161 dated October 29, 1991. See also HRL 950776 dated March 11, 1992, concerning lotus nut paste.

The product as described contains a high percentage of sugar (14% by weight), indicating that it is a dessert. The product does not contain soup “stock”. The product is consumed from its container rather than in a bowl. The product is intended to be consumed without heating. We are satisfied, based on the information submitted and our discussion above, that the product is not in fact a “soup” classified in subheading 2104.10.00, HTSUS, whether this provision is regarded as a use provision or an eo nomine provision.

Since the product is not elsewhere specified or included in the tariff, it is classified by virtue of GRI 1, in subheading 2008.11.60, HTSUS, as 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. Emphasis added.

HOLDING:

Peanuts boiled in water with the addition of sugar (14% by weight) in containers with a pull up lid and a plastic spoon which permits consumption of the contents without heating, is classified in subheading 2008.11.60, HTSUS, as 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.

You are directed to deny the protest in full.

In accordance with Section 3A (11 )(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the Protestant no later than 60 days from the date of this decision and any reliquidations of entries in accordance with this decision must be accomplished prior thereto.

Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel, and to the general public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act and other public access channels.

Sincerely,


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