Internal Advice 10/007; Classification of rice sticks and rice noodles from China

HQ H095603 October 28, 2010 CLA-2 OT:RR:CTF:TCM H095603 AP CATEGORY: Classification TARIFF NO.: 1902.19.20, 1901.90.90 Port Director U.S. Customs and Border Protection 9915 W. Bryn Mawr Avenue Rosemont, IL 60018 RE: Internal Advice 10/007; Classification of rice sticks and rice noodles from China Dear Port Director: This is in response to your memorandum, dated January 26, 2010, requesting Internal Advice in accordance with 19 C.F.R. § 177.11, concerning the proper classification of rice noodles and two varieties of rice sticks from China, initiated by letter dated September 25, 2009, by Thompson Coburn LLP, on behalf of its client, Best Food Services, Inc. A supplementary submission was made on March 8, 2010. In New York Ruling Letter (“NY”) 817493, dated December 29, 1995, U.S. Customs and Border Protection (“CBP”) classified rice sticks under subheading 1902.30.00, of the Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for “Pasta, whether or not cooked or stuffed . . . or otherwise prepared . . .: Other pasta.” The importer asserts that rice sticks and rice noodles are uncooked pasta and are classified in subheading 1902.19.20, HTSUS, which provides for “Pasta, whether or not cooked or stuffed . . .: Uncooked pasta, not stuffed or otherwise prepared: Other: Exclusively Pasta.” FACTS: The merchandise at issue is identified as Chao Ching rice sticks and Kong Moon rice sticks (“rice sticks”), and Chui Ho rice noodles (“rice noodles”). The rice sticks are thin, white-colored noodles, made of rice flour and water. The rice sticks may be boiled, fried, or cooked in soup. The rice noodles are made of 76.10 percent corn starch, 2.30 percent rice, and 21.60 percent water. The rice noodles could be stir-fried or eaten in the form of soup or salad. ISSUES: (1) Whether rice noodles made of starch are described as pasta of heading 1902, HTSUS. (2) Whether rice sticks and rice noodles that are steamed, dried, and packed before importation are classified as uncooked pasta, not stuffed or otherwise prepared of subheading 1902.19.20, HTSUS, or as cooked pasta of subheading 1902.30.00, HTSUS. LAW AND ANALYSIS: Classification under the HTSUS is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. The HTSUS provisions under consideration in this case are as follows: 1901 Malt extract; food preparations of flour, gloats, meal, starch or malt extract, not containing cocoa or containing less than 40 percent by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included; food preparations of goods of headings 0401 to 0404, not containing cocoa or containing less than 5 percent by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included: 1901.90 Other * * * 1901.90.90 Other ……………………………….. 1902 Pasta, whether or not cooked or stuffed (with meat or other substances) or otherwise prepared, such as spaghetti, macaroni, noodles, lasagna, gnocchi, ravioli, cannelloni; couscous, whether or not prepared: Uncooked pasta, not stuffed or otherwise prepared: * * * 1902.19 Other: 1902.19.20 Exclusively pasta ……………………………………………….. * * * 1902.30.00 Other pasta ………………………………………………………………………… The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized Tariff System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). The ENs to heading 1902 state that this heading covers “unfermented products made from semolinas or flours of wheat, maize, rice, potatoes, etc.” The rice sticks are made of rice flour and water. Therefore, the composition of the rice sticks meets the terms of heading 1902, HTSUS, as pasta. Next, we need to determine whether the rice sticks are properly classified in subheading 1902.19.20, HTSUS as uncooked pasta not stuffed or otherwise prepared, or in subheading 1902.30.00, HTSUS as cooked pasta. GRI 6 provides that for legal purposes, classification of goods in the subheading of a heading shall be determined according to the terms of those subheadings and any related subheading notes, and mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. GRI 6 thus incorporates GRIs 1 through 5 in classifying goods at the subheading level. The ENs to heading 1902 state that pasta under this heading “may be cooked, stuffed with meat, fish, cheese or other substances in any proportion or otherwise prepared” and that cooking “serves to soften the pasta without changing its original basic form.” In HQ 955977, dated May 25, 1994, we concluded that “[u]ncooked noodles, not stuffed or otherwise prepared and not containing eggs, fall in subheading 1902.19, [HTSUS].” In HQ 953104, dated April 1, 1993, we classified the rice sticks in subheading 1902.30, HTSUS, as cooked pasta. There the rice sticks were prepared by a cooking process that enabled a consumer to make instant soup by simply adding boiling hot water. In the instant case, the rice sticks contain no eggs and are not pre-cooked. The Chao Ching rice sticks need to be soaked thoroughly in hot water for about 3-5 minutes and then stir-roasted for another 1-2 minutes; fried in boiling oil; or boiled in flavored soup for a few minutes. The Kong Moon rice sticks need to be boiled in water for 3-5 minutes and roasted for 1-2 minutes; fried for 2 minutes; or cooked in soup for about 3 minutes (after being boiled in water for 3-5 minutes). Therefore, the rice sticks at issue in this case are properly classified as uncooked pasta in subheading 1902.19.20, HTSUS. We are of the opinion that there is no conflict with NY 817493, dated December 29, 1995, where the duration of steaming was unknown, because prolonged steaming can alter the structure and properties of a noodle, which in turn can reduce or modify the required cooking time. With regard to the rice noodles, the applicant argues that rice noodles are properly classified as uncooked pasta in subheading 1902.19.20, HTSUS. We disagree. In our opinion, rice noodles are not pasta of heading 1902, HTSUS, consistent with GRI 1 and the ENs. The ENs to heading 1902 define pasta as “unfermented products made from semolinas or flours of wheat, maize, rice, potatoes, etc.” You indicate that the rice noodles are composed of 76.10 percent corn starch, 21.60 percent water and 2.30 percent rice. Unlike the rice sticks, which are composed of rice flour and water, the rice noodles do not contain semolinas, rice or other flours. Thus, the rice noodles are not pasta and heading 1902, HTSUS, does not apply. The ENs to heading 1901 state that heading 1901 covers “a number of food preparations with a basis of flour, gloats or meal, of starch or of malt extract, which derive their essential character from such materials whether or not these ingredients predominate by weight or volume.” The ENs to heading 1901 state that food preparations of starch not containing cocoa are classified in heading 1901, HTSUS. The rice noodles are composed predominantly of corn starch and do not contain any cocoa. Therefore, the rice noodles are properly classified as other food preparations of starch not containing cocoa in heading 1901, HTSUS, specifically in subheading 1901.90.90, HTSUS. Accordingly, we affirm NY 817493 and conclude that the rice sticks are classified in subheading 1902.19.20, HTSUS, and the rice noodles are classified in subheading 1901.90.90, HTSUS. HOLDING: Pursuant to GRI 1 and GRI 6, the rice sticks are classifiable under subheading 1902.19.20, HTSUS, which covers “Pasta, whether or not cooked or stuffed . . .: Uncooked pasta, not stuffed or otherwise prepared: Other: Exclusively Pasta.” The column one, general rate of duty is zero. The rice noodles are classifiable under subheading 1901.90.90, HTSUS, which covers “Malt extract; food preparations of flour, gloats, meal, starch or malt extract, not containing cocoa . . .: Other: Other: Other: Other: Other: Other.” The column one, general rate of duty is 6.4 percent ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the Internet at www.usitc.gov. You are to mail this decision to the Internal Advice requester no later than 60 days from the date of the decision. At that time, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public, on the CBP website at www.cbp.gov by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division