• HQ H307706
• Jan 10, 2020

• Type : Classification • HTSUS :
•  Related:   955885; H272093; N120617   

OT:RR:CTF:FTM H307706 JER

Port DirectorU.S. Customs and Border Protection40 South Gay Street, Room 120
Baltimore, MD 21202

RE: Internal Advice; Tariff Classification of Oatmeal

Dear Port Director:

This is in response to the internal advice request, initiated by the law firm of Harris, Wiltshire & Grannis, LLP, on behalf of their client, Cuisine Solutions, Inc. (“Inquirer”), and transmitted to our office on December 23, 2019, concerning the classification of a sous-vide prepared oatmeal product under the Harmonized Tariff Schedule of the United States (“HTSUS”). Our decision is set forth below.

FACTS:

The merchandise is described as being fully cooked steel-cut oatmeal in vacuum sealed pouches imported from France. It is otherwise known as sous-vide prepared oatmeal. The ingredients include water, cooked organic steel-cut oat groats and salt. The oatmeal is sold in single packs with forty four packs in each case. The Inquirer states that the production process of the oatmeal begins with raw materials (oat groats) which are stored and frozen in France. The product is unpacked, weighed and then pre-cooked in boiling water for fourteen (14) minutes. It is then cooled in tap water and cold stored. Next, the oatmeal is cooked sous-vide at 85°C for one hour and cooled. The sous-vide cooking technique means that the food product is “cooked under vacuum” wherein the food is vacuum sealed in airtight pouches and slow-cooked in water at a constant low temperature. The product remains in the vacuum sealed pouches, and is then frozen and shipped to the United States.

Inquirer outlines the vacuum sealing/sous-vide cooking technique as follows:

Cuisine Solutions conducts an air extraction process for its vacuum sealed products that results in the creation of an airless pouch. Thermoformers operate with a bottom forming film – into which the oatmeal is placed – and a top non-forming film. The air is extracted, a vacuum is created and the two films get sealed together.

Thus, vacuum sealing results in an airtight packaging in which the oatmeal is slow-cooked and imported.

ISSUE: Whether a sous-vide prepared oatmeal product is classified under subheading 1904.10, HTSUS, or under subheading 1904.20, HTSUS.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with 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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.

Because the instant classification question occurs beyond the four-digit heading level, GRI 6 is implicated. GRI 6 states: For legal purposes, the 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. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.

The 2019 HTSUS provisions under consideration are as follows:

1904 Prepared foods obtained by the swelling or roasting of cereals or cereal products (for example, cornflakes); cereals (other than corn (maize)) in grain from or in the form of flakes or other worked grains (except flour, groats and meal), pre-cooked or otherwise prepared, not elsewhere specified or included:

1904.10 Prepared foods obtained by the swelling or roasting of cereals or cereal products…

* * * * * 1904.10.80 Other…

* * * * * 1904.20 Prepared foods obtained from unroasted cereal flakes or from mixtures of unroasted cereal flakes and roasted cereal flakes or swelled cereals: Vegetable saps and extracts:

1904.20.10 In airtight containers and not containing apricots, citrus fruits, peaches or pears…

* * * * * * * * * * * *

The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither 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 (August 23, 1989). The EN for heading 1904, HTSUS, states, in pertinent part:

Prepared foods obtained by the swelling or roasting of cereals or cereal products (for example corn flakes).

This group covers a range of food preparations made from cereal grains (maize, wheat, rice, barley, etc.) which have been made crisp by swelling or roasting. They are mainly used, with or without milk, as breakfast foods. Salt, sugar, molasses, malt extract, fruit or cocoa may have been added during or after their manufacture.

The group also includes similar foodstuffs obtained by swelling or roasting, from flour or bran. Corn flakes are made from grains of maize by removing the pericarp and the germ, adding sugar, salt and malt extract, softening with steam and then rolling into flakes and roasting in a rotary oven. The same process may be applied to wheat or other cereal grains.

Prepared foods obtained from unroasted cereal flakes or from mixtures of unroasted cereal flakes and roasted cereal flakes or swelled cereals.

This group includes prepared foods obtained from unroasted cereal flakes or from mixtures of unroasted cereal flakes and roasted cereal flakes or swelled cereals. These products (often called “Musli”) may contain dried fruit, nuts, sugar, honey, etc. They are generally put up as breakfast foods.

The Explanatory Notes (I) and (II) to GRI 6 state, in pertinent part:

(I) Rules 1 to 5 above govern, mutatis mutandis, classification at subheading levels within the same heading.

(II) For the purposes of Rule 6, the following expressions have the meanings hereby assigned to them:

(a) “subheadings at the same level”: one-dash subheadings (level 1) or two-dash subheadings (level 2).

Thus, when considering the relative merits of two or more one-dash subheadings within a single heading in the context of Rule 3(a) [below], their specificity or kinship in relation to a given article is to be assessed solely on the basis of the texts of the competing one-dash subheadings. When the one-dash subheading that is most specific has been chosen and when that subheading is itself subdivided, then, and only then, shall the texts of the two-dash subheadings be taken into consideration for determining which two-dash subheading should be selected.

* * * * * * * * *

The Inquirer contends that the oatmeal product is properly classified under subheading 1904.10, HTSUS. Specifically, Inquirer asserts that the sous-vide manufacturing process of the oatmeal distinguishes it from other variations of oatmeal previously classified under subheading 1904.20, HTSUS. In support of its argument, Inquirer cites to Headquarters Ruling Letter (“HQ”) H272093, dated November 7, 2017, wherein CBP held that rice cakes which had been steamed cooked and stored were properly classified under subheading 1904.10, HTSUS, as prepared foods obtained by swelling. Inquirer further supports its argument by citing to New York Ruling Letter (“NY”) F82427, dated February 28, 2000, in which Inquirer claims, CBP distinguished cereals which were neither roasted nor swelled from those which were packaged in an airtight container.

It is not disputed that the subject oatmeal product is classified under heading 1904, HTSUS, as it is indeed a prepared food which has been obtained by the swelling or roasting of cereals or cereal products. At issue is where amongst the competing 1904, HTSUS, subheadings, (1904.10, HTSUS, or 1904.20, HTSUS), is the imported oatmeal product properly classified. In particular, the terms of subheading 1904.10, HTSUS, and subheading 1904.20, HTSUS, provide for distinctly different prepared food products; with each subheading requiring a specific manner by which the food preparation is obtained and the type of cereal from which it is derived. Specifically, classification under subheading 1904.10, HTSUS, requires that as a prepared food, the product be obtained by the swelling or roasting of a cereal or cereal product. Whereas subheading 1904.20, HTSUS, requires the product be obtained from unroasted cereal flakes or from a mixture of unroasted and roasted cereal flakes or swelled cereals. Similarly, subheading 1904.10, HTSUS, makes no reference to mixtures and does not provide for mixtures of roasted, unroasted or swelled cereals. By contrast, subheading 1904.20, HTSUS, includes such mixtures. In particular, subheading 1904.20, HTSUS, provides for: unroasted flakes mixed with roasted cereal flakes or unroasted flakes mixed with swelled cereals.

Inquirer states that the vacuum-sealing of the oatmeal (i.e., the sous-vide cooking technique) results in the creation of an airtight container of the imported oatmeal product. According to the Inquirer, the vacuum sealing process involves the measurement of atmospheric pressure inside the container. Inquirer states that atmospheric pressure is 1013mbar at sea level; adding that “anything lower than 1031mbar at sea level is considered a vacuum.” The Inquirer further states that “a package that is airtight is a package that is hermetically sealed with no exchange of pressure.” This airtight packaging, Inquirer concedes, is the result of the sous-vide cooking technique used to prepare the subject oatmeal product.

CBP has previously addressed prepared foods which were packaged in airtight containers. For example, in NY N120617, dated September 2, 2010, CBP determined that an instant oatmeal product consisting of rolled oats would be classified under subheading 1904.20.10, HTSUS, if the instant oatmeal was packaged in airtight container. NY N120617 also stated that if the instant oatmeal was not packaged in an airtight container, it would be classified under subheading 1904.20.90, HTSUS. Likewise, in HQ 955885, dated December 16, 1996, CBP determined that a certain rolled barley cereal packaged in airtight containers was not classifiable under heading 1904, HTSUS, and there not under subheading 1904.20.10, HTSUS. In HQ 955885, CBP determined that a microscopic expansion of starch granules that occurred as a result of the application of heat and moisture did not result in swelling within the meaning of 1904, HTSUS. The decision in HQ 955885 further noted that the rolled barley had not been “made crisp” by any of the production operations. Lastly, the issue of airtight containers in HQ 955885 was never addressed because the cereal product was not classifiable under the broader terms of heading 1904, HTSUS.

In the instant case, the subject oatmeal product is packaged in an airtight container (as a result of its sous-vide preparation). However, unlike the decision in NY N120617, the current decision is not governed by presence of airtight containers and its corresponding eight-digit subheading. Rather, in accordance with the GRIs, classification of the subject oatmeal product is first determined according to the terms of the broader heading at the four-digit level. Much like the decision in HQ 955885, the product must first be determined to be classified under the terms of the four-digit HTSUS heading and any relative Section or Chapter Notes. Additionally, classification of goods in the subheadings of a heading are determined according to the terms of those subheadings on the understanding that only subheadings at the same level are comparable. Under our facts, the issue is at the comparable subheadings at the six-digit level. Therefore, any consideration of the subheading terms, at the eight-digit level, are secondary. Accordingly, the eight-digit provision for “airtight containers” under subheading 1904.20.10, HTSUS, cannot be considered until after a classification determination is made at the six-digit subheading level.

Since, in the instant case, the distinction occurs at the subheading level, GRI 6 applies to determine the classification of the product. In accordance with GRI 6, only the subheadings at the same level are comparable. Moreover, as the Explanatory Notes to Rule 6 (GRI 6) explains, “[t]he scope of a two-dash subheading shall not extend beyond that of the one-dash subheading to which the two-dash subheading belongs [.]” As such, the additional terms of 1904.20.10, HTSUS, which provide for airtight containers, cannot be construed to expand the fundamental scope of subheading 1904.20, HTSUS. Similarly, the ENs to GRI 6 explain that the specificity of the competing subheading terms are to be assessed solely on the basis of the texts of the competing one-dash subheading. Once a one-dash heading is determined to be most specific, then and only then, shall the text at the two-dash subheading be considered.

In this case, the oatmeal product is not described by the terms of subheading 1904.20, HTSUS. Specifically, the oatmeal is neither unroasted or a mixture. It is not obtained from a mixture of unroasted and roasted cereal flakes or from a mixture of unroasted and swelled cereal flakes. Instead, raw steel-cut oatmeal is swelled by boiling and further cooked by the sous-vide cooking method; none of which involves the roasting of the oats. According to the submission, the subject oatmeal is pre-cooked in boiling water for 14 minutes and thereafter fully-cooked sous-vide at 85°C for one hour. The sous-vide cooking technique means that the food product is “cooked under vacuum” wherein the food is vacuum sealed in airtight pouches and slow-cooked in water at a constant low temperature. Based on this production process, the subject food product meets the definition of a prepared food obtained by swelling rather than by roasting.

We note that although swelled oats are technically unroasted (meaning they are not roasted), the terms “unroasted” and “swelling” are distinctive. The use of each term (roasted, unroasted and swelling) in the competing 1904, HTSUS, subheadings indicate that the terms do not have the same meaning and are not mutually exchangeable. The swelling described in heading 1904, HTSUS, contemplates that the starch granules contained in the cereals absorb water and swell due to gelatinization. Gelatinization, in cooking, refers to the gelatinization of starch granules when heated in the presence of water at a range of 55° to 85° C. It is this gelatinization process that makes the subject oats swell (while being boiled and later cooked under vacuum). See generally, Swelling and Gelatinization of Oat Starch, Tester & Karkalas, Cereal Chem. 73 (2): 271-277; American Assoc. of Cereal Chemistry, Vol. 73, No. 2 (1996). See generally, HQ 955885 (Where CBP described an example of swelled cereals which had expanded several times its original volume). Inasmuch as the preparation process does not involve roasting and the product is composed only of swelled oats, the subject oatmeal product is not described by subheading 1904.20, HTSUS, but rather by the terms of subheading 1904.10, HTSUS.

Accordingly, whether or not it is packaged in an airtight container is not controlling over the terms and scope of the competing subheadings (at the six-digit level). Furthermore, because only the subheadings at the same level are comparable, a distinction cannot be made between the eight-digit subheading (providing for airtight containers) and the six-digit subheading (which provides for prepared foods obtained by the swelling of a cereal product). In the instant case, the oatmeal product is described by the terms of subheading 1904.10, HTSUS, as they are a prepared food obtained by the swelling of a cereal product.

HOLDING: By application of GRI 6, HTSUS, the oatmeal is specifically classified in subheading 1904.10, HTSUS. In particular, it is provided for in subheading 1904.10.80, HTSUS, which provides for: “Prepared foods obtained by the swelling or roasting of cereals or cereal products; cereals in grain form or in the form of flakes or other worked grains, pre-cooked or otherwise prepared, not elsewhere specified or included: Prepared foods obtained by swelling or roasting of cereals or cereal products, Other.” The 2019 column one, general rate of duty is 1.1% ad valorem.

Duty rates are provided for the internal advice applicant’s convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided online at www.usitc.gov.

You are to mail this decision to the requestor no later than 60 days from the date of the decision. At that time, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and to the public on the Customs Rulings Online Search System (“CROSS”), at https://rulings.cbp.gov/, and other methods of public distribution. 

Sincerely,


Craig T. Clark, Director
Commercial and Trade Facilitation Division