CLA-2 CO:R:C:F 088326 RFC
Mr. Martin P. Whalen
President
Gerber Cheese Co., Inc.
1500 Summer Street
Stamford, CT 06905
RE: Request for Reconsideration of New York Ruling Letter (NYRL)
856926
Dear Mr. Whalen:
This ruling letter is in response to your request for a
reconsideration of NYRL 856926, dated November 7, 1990, and
concerning the tariff classification under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) of a cheese-
snack product.
FACTS:
The product consists of rectangular-shaped pieces of baked
and dried paste. Each of the pieces is hollow with shell-like
structures and are approximately 1-1/2 inches in length and 1/2
inch in width. The pieces are stated to consist of Gruyere
cheese, potato starch, emulsifying salts, milk proteins, salt,
and spices. Each piece is crisp in texture.
The product is identified as "cheese snacks" and is
described as being "light'n crunchy." It is packaged and sold in
multiple amounts similar to potato chips, corn chips or other
snack foods.
ISSUE:
What is the proper tariff classification under the HTSUSA of
a rectangular-shaped product that is hollow with a shell-shaped
structure; approximately 1-1/2 inches in length and 1/2 inch in
width; consisting of Gruyere cheese, potato starch, emulsifying
salts, milk proteins, salt, and spices; crisp in texture;
identified as "cheese snacks"; described as "light'n crunchy";
and packaged and sold in multiple amounts similar to potato
chips, corn chips or similar snack foods?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified
under the HTSUSA. The tariff classification of merchandise under
the HTSUSA is governed by the principles set forth in the General
Rules of Interpretation (GRIs) and, in the absence of special
language or context which otherwise requires, by the Additional
U.S. Rules of Interpretation. The GRIs and the Additional U.S.
Rules of Interpretation are part of the HTSUSA and are to be
considered statutory provisions of law for all purposes. See
Sections 1204(a) and 1204(c) of the Omnibus Trade and
Competitiveness Act of 1988 (19 U.S.C. 1204(a) and 1204(c)).
GRI 1 requires that classification be determined first
according to the terms of the headings of the tariff (i.e., (1)
merchandise is to be classified under the four-digit heading
that most specifically describes the merchandise; (2) only four-
digit headings are comparable; and (3) merchandise must first
satisfy the provisions of a four-digit heading before
consideration is given to classification under a subheading
within this four-digit heading) and any relative section or
chapter notes and, provided such headings or notes do not
otherwise require, then according to the other GRIs.
GRI 1 prescribes that, for legal purposes, GRIs 1 to 5 shall
govern, mutatis mutandis, classification at subheading levels
within the same heading. Therefore, merchandise is to be
classified at equal subheading levels (i.e., at the same digit
level) within the same four-digit heading under the subheading
that most specifically describes or identifies the merchandise.
The Explanatory Notes to the Harmonized System represent the
official interpretation of the Customs Cooperation Council on the
scope of each heading. See H.R. Conf. Rep. No. 100-576, 100th
Cong., 2d Sess. 549 (1988); 23 Customs Bulletin No. 36, 3 (T.D.
89-90, September 6, 1989), 59 F.R. 35127 (August 23, 1989).
Although not binding on the contracting parties to the
Harmonized System Convention or considered to be dispositive in
the interpretation of the Harmonized System, the Explanatory
Notes should be consulted on the proper scope of the Harmonized
System. Id.
A review of the chapters in the schedule reveals that the
instant product may be potentially classified in chapter 19.
This chapter covers "preparations of cereals, flour, starch or
milk" and "bakers' wares." In chapter 19, the only heading under
which the product may be potentially classified is 1905. This
heading provides for "bread, pastry, cakes, biscuits and other
bakers' wares, whether or not containing cocoa" and "communion
wafers, empty capsules of a kind suitable for pharmaceutical use,
sealing wafers, rice paper and similar products."
In heading 1905, the only subheadings under which the
instant products may be potentially classified (and those which
are in dispute in the request for reconsideration) are
subheadings 1905.90.10 and 1905.90.90. Subheading 1905.90.10
provides for "bread, pastry, cakes, biscuits and similar baked
products, and puddings, whether or not containing chocolate,
fruit, nuts or confectionery." On the other hand, subheading
1905.90.90 provides for "other" articles (i.e., those articles
not eo nomine or specifically provided for but which are
nonetheless properly classified under this heading). Therefore,
as the instant product has been found to be most specifically
described by the terms of heading 1905, the issue is whether,
pursuant to GRIs 1 and 6, the terms of subheading 1905.90.10 or
subheading 1905.90.90 most specifically describe the products.
As indicated above, the Explanatory Notes should be
consulted for guidance in the proper interpretation of the scope
of each heading to the Harmonized System. As such, they are
generally not applicable at the 8-digit subheading national level
of the HTSUSA. In the present case, the competing provisions are
at the 8-digit subheading level. Nonetheless, guidance
concerning the scope of the two competing subheadings in this
case can be obtained from the Explanatory Notes to heading 1905.
The material from the Explanatory Notes to heading 1905 that
is relevant to subheading 1905.90.10 in the instant
classification analysis states that:
Biscuits...are usually made from flour and fat to which may
have been added sugar or certain...[other substances]. They
are baked for a long time to improve the keeping qualities
and are generally put up in closed packages. There are
various types of biscuits including:...[(1)]...Plain
biscuits containing little or no sweetening matter but a
relatively high proportion of fat...[which]...includes
cream crackers and water biscuits...[and]..[(2)]..[s]avoury
and salted biscuits, which usually have a low sucrose
content.
See Explanatory Note (A)(8) to Heading 1905 to the Harmonized
Commodity Description and Coding System.
These descriptions and definitions of "biscuits" are consistent
with other descriptions and definitions of biscuits. See Vol. 1
The Compact Edition of the Oxford English Dictionary 220 (1987)
(Biscuits are "[a] kind of crisp dry bread more or less hard,
prepared generally in thin flat cakes. The essential ingredients
are flour and water, or milk, without leaven; but confectionery
and fancy biscuits are very variously composed and flavoured.
Even the characteristic of hardness implied in the name is lost
in the sense 'A kind of small, baked cake, usually fermented,
made of flour, milk, etc.,' used, according to Webster, in
U.S."). The Random House Dictionary of the English Language 151
(1983) (Biscuits: "1. U.S. a kind of bread, in small, soft cakes,
raised with baking powder or soda, sometimes with yeast. 2. Brit.
a. a dry and crisp or hard bread in thin, flat cakes, made
without yeast or other raising agent; a cracker. b. a cookie.").
A common characteristic found in all the above descriptions
and definitions is that biscuits have a full consistency or
density throughout. In other words, biscuits are not hollow and
do not have shell-like structures. As discussed above, the
instant product is hollow with a shell-like structure.
Therefore, this product is not properly classified under
subheading 1905.90.10.
As discussed above, the alternative subheading under
heading 1905 under which the instant products may be potentially
classified is 1905.90.90. As indicated above, the Explanatory
Notes are generally intended for application not beyond the 6-
digit international level. In the instant classification
analysis, however, the Explanatory Notes to heading 1905 can
provide guidance concerning the classification of goods under
subheading 1905.90.90:
Crisp savoury food products, for example those made of a
dough based on maize (corn) meal with the addition of a
flavouring consisting of a mixture of cheese, monosodium
glutamate and salt, fried in vegetable oil, ready for
consumption.
See Explanatory Note A(15) to Heading 1905 to the Harmonized
Commodity Description and Coding System.
The example set forth in the above note is merely an
illustration. Therefore, there is no limitation on how crisp
savory snack food products classified under subheading
1905.90.90 are to be prepared (e.g., baked or fried).
In the present case, the product is "crisp" and "savory" and
intended for consumption as a "snack food." Therefore, the
product is properly classified within subheading 1905.90.90 as a
"crisp savory snack food" under the statistical-reporting number
1905.90.9030.
HOLDING:
The above-described product is properly classified under
subheading 1905.90.9030, HTSUSA, which provides for bread,
pastry, cakes, biscuits and other bakers' wares, whether or not
containing cocoa; communion wafers, empty capsules of a kind
suitable for pharmaceutical use, sealing wafers, rice paper and
similar products, other, other, corn chips and similar crisp
savory snack foods. The general rate of duty is 10 percent ad
valorem.
In view of the above, NYRL 856926 is hereby affirmed in its
entirety.
Sincerely,
John Durant, Director
Commercial Rulings Division