CLA-2 CO:R:C:F 088106 SLR
District Director of Customs
477 Michigan Avenue
Detroit, MI 48266
RE: Protest No. 3801-0-001303;
Infant Cereals from Canada
Dear Sir:
This is our decision regarding Application for Further
Review of Protest No. 3801-0-001303, filed February 1, 1990,
against your decision in the classification of infant cereals
entered on September 12, 1989, and liquidated on November 3,
1989.
FACTS:
The merchandise at issue consists of the "Rice", "Mixed",
"Barley", "Hi-Protein", and "Oatmeal" baby cereals produced by
the H.J. Heinz Company. These cereals are of the type to be
added to water, formula, milk, or juice. Their origin, however,
is as follows.
At the beginning, the various types of flours (depending
upon which of the five cereals is being produced) are dumped into
vats holding over 800 gallons and mixed with water and enzymes
(the enzymes converting some of the starch to sugar). The
resulting mixture displays the consistency of a gruel. This
gruel is raised to boiling temperature for at least ten minutes.
This de-activates the enzymes. Next, the gruel is pumped into
a holding tank where it is stirred at 190 to 200 degrees
Fahrenheit. The mixture then travels to a finisher where the
gruel is forced through a mesh screen to eliminate any large
lumps. The mixture then enters regulator tanks which control the
flow of the gruel to drying drums. A pump deposits a wet, thin,
continuous film onto the surface of the drums. The drying drums
heat the product to 300 degrees Fahrenheit, thus reducing the
gruel's moisture content. A dry, thin sheet results. The sheets
fall off the drum into a trough, where an auger cuts them into
individual flakes and carries them off to a blower. Gravity
pulls off the heavy waste while the fine dust waste is sucked
out. The good product goes into bins for subsequent packaging.
-2-
You liquidated the subject merchandise in subheading
1901.90.9060, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), which provides for food preparations of
flour, meal, starch or meal extract, not elsewhere specified or
included, put up for retail sale, dutiable at 10 percent
ad valorem (7 percent for qualifying goods under the United
States-Canada Free Trade Agreement (FTA)).
The protestant claims classification in either subheadings
1104.19.0000 or 1904.10.0000 -- the former providing for rolled
or flaked cereal grains, the latter providing for prepared foods
obtained by the swelling or roasting of cereals or cereal
products. Products classifiable in subheading 1104.19.0000,
HTSUSA, originating from Canada enjoy duty free status upon entry
into the United States under the FTA. Products classifiable in
subheading 1904.10.0000, HTSUSA, originating from Canada may
enter the U.S. at the reduced rate of 1.7 percent ad valorem
under to the FTA.
ISSUE:
Whether the infant cereals are classifiable as otherwise
worked grains, or swollen or roasted cereal products, or as food
preparations of flour not elsewhere specific or included.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification is determined
according to the terms of the headings and any relative section
or chapter notes.
Although not legally binding, the Explanatory Notes to the
Harmonized Tariff Schedule represent the official interpretation
of the tariff at the international level. They offer guidance in
understanding the scope of the HTSUSA provisions.
Heading 1104, HTSUSA, provides, in pertinent part, for
"[c]ereal grains otherwise worked (for example, hulled, rolled,
flaked, pearled, sliced or kibbled)." The Explanatory Note to
heading 1104 indicates that "[t]his heading covers all unprepared
milling products...." (Emphasis added.) Legal Note 1 to
Chapter 11, however, indicates that the chapter does not cover,
among other products:
(b) Prepared flours, meals, or starches
of heading No. 19.01;
(c) Corn flakes or other products
of heading 19.04;
-3-
The subject cereals are not classifiable in heading 1104,
HTSUSA. The extent of their preparation far exceeds the level
of processing contemplated by heading 1104. The question remains
whether the cereals are classifiable in heading 1901 or
heading 1904.
Heading 1904, HTSUSA, provides, in pertinent part, for
"[p]repared foods obtained by the swelling or roasting of
cereals or cereal products (for example, corn flakes)."
The Explanatory Note to heading 1904 indicates that "[t]his group
covers a wide range of food preparations made from cereal
grains...which have been made crisp by swelling or roasting."
(Emphasis added.) The described processes, in other words, must
impart specific properties to the food preparation.
While some expansion of the dry ingredients may occur as a
result of the addition of water and heat, the resulting food
product has not been "made crisp" by this operation. Similarly,
drying the moist material on a hot drum reduces its moisture
content and creates a dry, flat product; however, each cereal
product resembles more of a powder than a flake. Accordingly,
the subject cereals are not classifiable in heading 1904.
Heading 1901, HTSUSA, provides, in pertinent part, for
"food preparations of flour, meal, starch or malt extract...not
elsewhere specified or included." The Explanatory Note to
heading 1901 indicates, in pertinent part, that:
The preparations of this heading may be
...in the form of powders or granules....
These preparations are often used for making...
infant foods...by simply mixing with, or
boiling in, milk or water....
The subject preparations are of the type described by the
note. Consequently, they are classsifiable in heading 1901.
HOLDING:
The baby food cereals are classifiable in subheading
1901.10.0000, HTSUSA, which provides for "food preparations of
flour, meal, starch or malt extract...not elsewhere specified or
included...preparations for infant use, put up for retail sale."
The rate of duty under the General column is 17.5 percent
ad valorem.
Articles classifiable under subheading 1901.10.0000, HTSUSA,
which have originated from Canada, are entitled to enter the U.S.
at the 1989 reduced rate of duty, 15.7 percent ad valorem, upon
compliance with all applicable regulations pursuant to
the FTA.
-4-
Since the rate of duty under the classification indicated
above is more than the liquidated rate, you are instructed to
deny the protest in full. A copy of this decision should be sent
to the protestant along with the Form 19 Notice of Action.
Sincerely,
John Durant, Director
Commercial Rulings Division