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