CLA-2 RR:TC:FC 956769 RC
Port Director of Customs
1000 2nd Avenue, Room 2200
Seattle, Washington 98104
RE: Application for Further Review of Protest No. 3004-94-100082,
filed May 3, 1994, concerning the classification of granola bars.
Dear Sir:
This is a decision on a protest filed against your decision
in the classification of goods entered in 1993; and liquidated
February 11, 1994.
FACTS:
The merchandise at issue, products of Canada, are snack
foods, described on the invoices as "Crunchy Oat Bars," "Chewy
Bars," and "Granola Bars." Samples of two items (honey and
almond flavor crunchy oat bar and chocolate chip flavor chewy
granola bar) were submitted for our review. Both samples are
flat and rectangular measuring approximately 3-3/4 inches long,
1-1/2 inches wide, and 1/4 inch thick. The crunchy granola bar
contains 55 percent rolled oats, 22 percent brown sugar, 13.5
percent vegetable oil, 3 percent sliced almonds, 3 percent honey,
1.5 percent sesame seeds, 1.5 percent wheat germ, and less than
one percent each of salt and vanilla extract.
The chewy granola bar contains 26 percent rolled oats, 18
percent wheat flour, 14 percent glucose fructose, 11 percent
vegetable oil, 10 percent brown sugar, 9.5 percent chocolate
chips, 6 percent raisins, 2.4 percent coconut, and less than one
percent each of artificial vanilla, sodium bicarbonate, and whey
powder. The bars are prepared by (1) blending all ingredients,
(2) passing the mixture through a roller, (3) forming a thin
sheet, (4) baking,
(5) cutting to size, (6) cooling, and (7) packaging.
You classified the crunchy oat bars in subheadings
1704.90.2005, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), the provision for confections containing
little or no cocoa, dutiable at 3.5 percent ad valorem (1993);
and the chewy chocolate chip bars in subheading 1806.32.4094,
HTSUSA, the provision for confections containing cocoa, dutiable
at
3.5 percent ad valorem. This represented a change from the
protestant's entered classification under subheading
1905.30.0040, HTSUSA, the provision for biscuits, and the
protestant's present claim that the proper classification is
1905.90.1050, HTSUSA, the provision for bakers' wares, bearing a
free rate of duty under the Generalized System of Preferences
(1993).
ISSUE:
Whether baked granola bars containing primarily oats (some
containing chocolate chips) are properly classified as sugar
confectionery and cocoa preparations or as bakers' wares, whether
or not containing cocoa.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRIs) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUS. Most imported goods are classified
by application of GRI 1, that is, according to the terms of the
headings of the tariff schedule and any relative section or
chapter notes. The Explanatory Notes (ENs) 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 GRIs.
Heading 1704 provides for "Sugar confectionery (including
white chocolate), not containing cocoa." The EN to subheading
1704.90 identifies the following examples as confections: Gums,
boiled sweets, caramels, cachous, candies, nougat, fondants,
sugared almonds, Turkish delight, marzipan, preparations put up
as throat pastilles or cough drops, white chocolate, liquorice
extract, fruit jellies, sugar pastes.
Heading 1806 provides for "Chocolate and other food
preparations containing cocoa." The General Explanatory Note to
this chapter excepts: Pastry, cakes, biscuits and other bakers'
wares, containing cocoa (heading 19.05). Bakers' wares are
precluded from classification in chapter 18 by chapter note 1.
Heading 1905 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." Subheading 1905.90.1050, HTSUSA, provides for
"Pastries, cakes and similar sweet baked products; puddings,"
Classification as bakers' ware depends on the composition
and commercial identity of the product under consideration.
First, while these crunchy and chewy granola bars are baked, we
note granola bars are not usually baked. Secondly, while rolled
oats, rather than sugar or cocoa, constitute the primary
ingredient of both granola bars, neither the HTSUSA nor the EN's
address sugar content in terms of requisite amounts for articles
that fall into headings 1704, 1806, and 1905. Only the chewy
granola bars contain some wheat flour, an ingredient most often
found in bakers' ware. Flour-like substances give bakers' ware a
continuous structure. The baking process of batter containing
flour chemically alters the ingredients forming the new
continuous structure. Yeast or another leavening substance is
often used in the batter of bakers' wares, but is not an
ingredient of the granola bars. The leavening agent chemically
alters the ingredients forming a new continuous structure.
Granola bars are sold as snacks, marketed as healthier than
candy bars because they contain less refined sugar, perhaps dried
fruit, and wholesome oats. Nevertheless, they are snacks in the
same vein as candy bars, in general. They are fully prepared for
consumption and sold in vending machines or in grocery stores
alongside other snacks such as candy. They generally are not
sold in bakeries where one buys bread, pastry, cookies, etc.
.
Given the above-stated qualities of the submitted granola
bars, we find the crunchy oat bars fall into subheading
1704.90.2005, HTSUSA, the provision for confections containing
little or no cocoa, dutiable at 3.5 percent ad valorem (1993);
and the chewy chocolate chip bars fall into subheading
1806.32.4094, HTSUSA, the provision for confections containing
cocoa, dutiable at 3.5 percent ad valorem.
HOLDING:
The crunchy oat bars fall into subheading 1704.90.2005,
HTSUSA, the provision for sugar confectionery (including white
chocolate) not containing cocoa, dutiable at 3.5 percent ad
valorem (1993), as a product of Canada; and the chewy chocolate
chip bars fall into subheading 1806.32.4094, HTSUSA, the
provision for chocolate and other food preparations containing
cocoa, dutiable at 3.5 percent ad valorem, as a product of
Canada.
You are instructed to deny the protest in full. A copy of
this decision should be attached to the Customs Form 19, Notice
of Action on the protest, to be returned to the protestant.
In accordance with Section 3 A (11)(b) of Customs Directive
099 3550-065, 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 mailing of the decision. Sixty
days
from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings 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