CIT Affirms CBP Classification of Tempura Vegetables as 'Vegetable Preparations'
The Court of International Trade affirmed CBP’s Harmonized Tariff Schedule classification of R.T. Foods’ tempura vegetables from Thailand as vegetable preparations in Chapter 20, rather than as miscellaneous edible preparations in Chapter 21. CBP’s classification as vegetables specifically described the product, so it could not instead be classified in R.T. Foods’ preferred catch-all edible preparations provision, CIT said.
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R.T. Foods imported from Thailand the two products at issue in this case, “vegetable bird’s nests” and a tempura vegetable medley, in 2007 and 2008. The vegetable bird’s nests consisted of carrots, onion and kale, which were cut julienned-style, mixed and arranged to look like bird’s nests, dipped in tempura batter, deep fried, flash frozen, and packaged eight in a retail tray. The vegetable medley included 18 pieces of tempura -- three pieces each of the bird’s nests, sweet potatoes, carrots, wing beans, green beans, and eggplant. The individual pieces in the medley were also tempura battered, deep fried, flash frozen, and packaged in a retail box.
R.T. Foods imported 24 entries of the merchandise, 10 into the Port of Boston and 14 into the Port of Long Beach. CBP classified the 10 Boston entries and three of the Long Beach entries under HTS subheading 2004.90.85, “other vegetables prepared or preserved otherwise than by vinegar or acetic acid, frozen, other than products of heading 2006: other vegetables and mixtures of vegetables: other: other, including mixtures,” dutiable at 11.2 percent. The other 11 Long Beach entries were liquidated under R.T. Foods’ preferred HTS subheading of 2106.90.99, “food preparations not elsewhere specified or included: other: other: other: frozen,” which entered duty-free from Thailand. CBP said that classification was a mistake. After CBP denied protests of the classification of all 24 entries, R.T. Foods filed suit in October 2009, arguing that all 24 entries should have been classified under subheading 2106.90.99.
CIT Jurisdiction Barred on 21 of 24 Entries
CIT said it only has jurisdiction over three of the 24 entries. R.T. Foods’ challenge of the 10 Boston entries was filed over 180 days after CBP denied the protest, barring CIT jurisdiction on statute of limitation grounds, the court said. R.T. Foods argued that the statute of limitations had been tolled, or essentially paused, because it filed requests for reconsideration of the protest denials pursuant to 19 USC 1515(c) and (d). But the court said 1515(c) explicitly says that 180-day period for filing suit at CIT is triggered by CBP’s initial denial of the protest, and requests for reconsideration have no impact.
CIT’s jurisdiction was also barred on the 11 Long Beach entries that CBP mistakenly liquidated at R.T. Foods’ preferred classification, it said. R.T. Foods brought suit over those entries on constitutional grounds, said CIT, but constitutional issues may only be argued if the plaintiff, among other things, suffered an “injury in fact.” Because R.T. Foods paid no duties on the entries (they entered duty-free), it did not suffer injury, CIT said.
Remaining Three Correctly Classified Under GRI 1
For the remaining three entries, CIT found that CBP’s classification under subheading 2004.90.85 specifically described the tempura vegetables. The products were “(1) vegetables that are (2) prepared (3) in tempura batter, not in vinegar or acetic acid, which are (4) flash frozen, and are (5) not products preserved by sugar as provided for by heading 2006,” CIT said. On the other hand, the products only met one of the two requirements for classification in subheading 2106.90.99, as requested by R.T. Foods. The products were “food preparations,” but because CIT found the products were included in subheading 2004.90.85, they did not meet the requirement that they not be otherwise specified or included in another HTS provision.
Pursuant to General Rule of Interpretation (GRI) 1, which says “classification shall be determined according to the terms of the headings and any relative section or chapter notes,” CIT found that the language of subheading 2004.90.85 accurately described R.T. Foods’ products, while subheading 2106.90.99 did not. CIT thus affirmed CBP’s classification.
(R.T. Foods, Inc. v. U.S., Slip Op. 12-152, dated 12/14/12, Judge Carman)
(Attorneys: Peter Herrick for plaintiff R.T. Foods; Beverly Farrell for defendant U.S. government)