CLA-2 OT:RR:CTF:TCM W968393 IDL
John P. Smirnow, Esq.
Pisani & Roll, Attorneys at Law
1875 Century Park East
Los Angeles, California 90067
Re: Graham Flavored Crisp; NY M81123 affirmed
Dear Mr. Smirnow:
This letter is in response to your request for reconsideration of New York Ruling Letter (NY) M81123, dated April 4, 2006, issued by the National Commodity Specialist Division, U.S. Customs and Border Protection (CBP) to your firm on behalf of your client, Fonterra (USA), Inc. At issue in NY M81123 was the correct classification of the product “Graham Flavored Crisp” under the Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed NY M81123 and have found it to be correct. Our discussion on this matter is set forth below.
FACTS:
In NY M81123, the merchandise at issue was described as a “Graham Flavored Crisp” (also identified as “Protein Crisp 40”), which consisted of brown-colored nuggets measuring approximately 3/8-inch square and 1/8-inch thick. The nuggets were composed of at least 60 percent whey protein concentrate (80 percent of which was protein, on a dry basis), wheat flour and corn starch (between 5 and 15 percent each), sucrose and molasses (between 2 and 10 percent each), malt extract and honey (between 2 and 5 percent each), and 4.56 percent cane or beet sugar. The nuggets were prepared by mixing all of the ingredients together with water in an extruder. The extruded blend was then dried to approximately 3 percent moisture and packed in plastic-lined boxes weighing between 15 and 25 kilograms.
CBP classified the crisps described in NY M81123 under subheading 2106.90.9997, HTSUSA, which provides for: “Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Other: Other: Other: Other: Containing sugar derived from sugar cane and/or sugar beets.”
Your request for reconsideration of NY M81123 is based on the position that the crisps should have been classified under subheading 1905.90.9030, HTSUSA, as: “Bread, pastry, cakes, biscuits and other bakers’ wares, whether or not containing cocoa: Other: Other: Corn chips and similar crisp savory snack foods”. You have provided marketing materials describing Graham Flavored Crisp as an “inclusion”, i.e., an ingredient in a variety of foods for human consumption, such as cereals, snack foods, or baked goods.
ISSUE:
Whether the Graham Flavored Crisp described above is correctly classified under subheading 1905.90.9030, HTSUSA, or subheading 2106.90.9997, HTSUSA?
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most 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. 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.
The HTSUS provisions under consideration are as follows:
1905 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:
* * *
1905.90 Other:
* * *
1905.90.90 Other
1905.90.9030 Corn chips and similar crisp savory snack foods…..
2106 Food preparations not elsewhere specified or included:
* * *
2106.90 Other:
* * *
Other:
* * *
Other:
* * *
Other:
* * *
Other:
* * *
2106.90.99 Other.....
* * *
Other:
* * *
Other:
* * *
Other:
Containing
sugar
derived from sugar
cane and/or sugar beets…..
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 19.05 provides the following:
(A) Bread, pastry, cakes, biscuits and other bakers’ wares, whether or not containing cocoa.
This heading covers all bakers’ wares. The most common ingredients of such wares are cereal flours, leavens and salt but they may also contain other ingredients such as: gluten, starch, flour of leguminous vegetables, malt extract or milk, seeds such as poppy, caraway or anise, sugar, honey, eggs, fats, cheese, fruit, cocoa in any proportion, meat, fish, bakery “improvers”, etc. Bakery “improvers” serve mainly to facilitate the working of the dough, hasten fermentation, improve the characteristics and appearance of the products and give them better keeping qualities. The products of this heading may also be obtained from a dough based on flour, meal or powder of potatoes.
The heading includes the following products:
* * *
(15) Crisp savoury food products, for example, those made from a dough based on flour, meal or powder of potatoes, or 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.
EN 21.06 provides the following:
Provided that they are not covered by any other heading of the Nomenclature, this heading covers:
(A) Preparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk, etc.) for human consumption.
Preparations consisting wholly or partly of foodstuffs, used in the making of beverages or food preparations for human consumption. The heading includes preparations consisting of mixtures of chemicals (organic acids, calcium salts, etc.) with foodstuffs (flour, sugar, milk powder, etc.) for incorporation in food preparations either as ingredients or to improve some of their characteristics (appearance, keeping qualities, etc.) (see the General Explanatory Note to Chapter 38).
You contend that the crisps should be classified under heading 1905, HTSUS, as “other bakers’ wares”. It is your position that because CBP has not defined the phrase “bakers’ wares” and because it is not defined in the tariff schedule, the term must be construed in accordance with its common and commercial meaning, which may be determined by consulting dictionaries, lexicons, scientific authorities, and other reliable sources. However, you do not yourself offer a definition of the term “other bakers’ wares” but merely assert that the crisps are provided for in heading 1905 as a snack food. Specifically, you note that, “except for molasses, each of the ingredients in the crisps are [sic] included with the list of common ingredients for bakers’ wares” specified in EN 19.05. In support of your position, you cite to CBP rulings that classify various foods under heading 1905, HTSUS. NY 856926 (November 7, 1990) and NY A88727 (November 6, 1996) concerned the classification of a baked biscuit product and a rice cracker product, respectively. Heading 1905 specifically provides for “biscuits”. Therefore, we agree that the product described in NY 856926 was correctly classified in heading 1905, HTSUS. Further, the “rice cracker” product described in NY A88727, is a type of biscuit and is also encapsulated by heading 1905, HTSUS. However, we find that these rulings are not determinative of the classification of the crisps currently at issue because of the dissimilarity between the crisps and the products classified in those rulings.
CBP has previously construed the term “bakers’ wares” to mean “manufactured articles offered for sale by one [who] specializes in the making of breads, cakes, cookies, and pastries.” See HQ H015429, dated December 11, 2007. This definition was based on the dictionary definition of the word “baker” and the word “wares” since we were unable to find a dictionary that defined the compound term “bakers’ wares”. The text of heading 1905, HTSUS, provides for “other bakers’ wares” which, when read in the context of the entire clause of which this expression is a part, leads us to now find that the term “other bakers’ wares” refers to baked goods (or wares) other than the “bread, pastry, cakes, [and] biscuits” specified in the heading. In addition, based on the heading text and the examples provided by the ENs, it appears that goods of heading 1905, HTSUS, are consumed “as is” and are not incorporated into other food items. Based on these factors, we find that the crisps are not described by heading 1905, HTSUS as “other bakers’ wares” because they are not typically consumed in their manufactured state on their own but are incorporated into other food items for protein enrichment purposes.
Other rulings cited by counsel, NY H87572 (February 14, 2002), NY J87031 (August 12, 2003), NY E88436 (October 26, 1999), and NY C83563 (February 5, 1998) involved the classification of “Vege Chips”, “Curly Peanut Classic” and “Curly Peanut Italian Style”, “Peanut Curls”, and “Wafer Silhouettes”, respectively, as other bakers’ wares of heading 1905, HTSUS. We note that the products in the cited rulings, unlike the crisps, were all for consumption in their manufactured states and were not for inclusion in other food items. Those classification decisions are, therefore, consistent with our position regarding the scope of the expression “other bakers’ wares.”
Heading 2106, HTSUS, provides for: “Food preparations not elsewhere specified or included", and is to be considered if the product is not more specifically described in another provision of the HTSUS. According to Part (B) of EN 21.06, the food preparations of heading 2106, HTSUS, may consist of foodstuffs used in or with other foods. This is illustrated in the ENs to heading 2106, HTSUS, which list several examples of food composed of a mixture of ingredients. We have found, as discussed above, that the crisps are not provided for under heading 1905, HTSUS. We now find that the Graham Flavored Crisp meets the requirements of heading 2106, HTSUS, and the description provided in EN 21.06, because there is no other tariff provision that describes this product. Further, as a product which contains 4.56 percent cane or beet sugar, by dry weight, the crisps are specifically provided for under subheading 2106.90.9997, HTSUSA.
HOLDING:
By application of GRI 1, the Graham Flavored Crisp is classified in heading 2106, HTSUS, and is specifically provided for under subheading 2106.90.9997, HTSUSA, as: “Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Other: Other: Other: Other:
Containing sugar derived from sugar cane and/or sugar beets.” The 2008 column one, general rate of duty is 6.4% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web, at http://www.usitc.gov.tata/hts/.
This merchandise is subject to the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling the FDA, at (301) 575-0156, or from the following Web site: www.fda.gov/oc/bioterrorism/bioact.html.
EFFECT ON OTHER RULINGS:
NY M81123, dated April 4, 2006, is affirmed.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division