CLA-2 CO:R:C:F 954845 LPF
John M. Peterson, Esq.
Neville, Peterson & Williams
39 Broadway
New York, NY 10006
RE: Reconsideration of NYRL 886129; "Munchos" potato crisp snack
food in heading 1905 as bread, pastry, cakes, biscuits and
other bakers' wares; Not heading 2005, prepared vegetables;
HRLs 082009 and 083132
Dear Mr. Peterson:
This is in response to your letter of August 16, 1993,
requesting reconsideration of New York Ruling Letter 886129, issued
June 9, 1993. In that ruling potato crisps were classified in
subheading 1905.90.9030, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), as "Bread, pastry, cakes, biscuits and
other bakers' wares...: Other: Other, Corn chips and similar crisp
savory snack foods." As requested, we have reviewed that ruling.
The correct classification follows.
FACTS:
"Munchos," produced in Mexico, are a snack food described as
potato crisps. They are made from a batter composed of dehydrated
potato flakes (64.6%), corn meal (25.4%), potato starch (8.1%),
yeast (1.1%), and salt (0.5%). Thin, two inch diameter discs are
cut from sheets of this batter, dried, fried in oil, salted, and
packaged for retail sale. The puffed, curled products are similar
in appearance to potato chips.
ISSUE:
Whether the Munchos potato crisp snacks are classifiable within
heading 1905 as bread, pastry, cakes, biscuits and other bakers'
wares or within heading 2005 as other vegetables prepared or
preserved.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRIs) taken in their
appropriate order provide a framework for classification of
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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.
The headings meriting consideration in this case are heading
1905 providing for bread, pastry, cakes, biscuits and other bakers'
wares and heading 2005 providing for other vegetables prepared or
preserved. The EN to 1905 indicate that the heading includes:
[a]ll 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....
The heading includes...
(15) Crisp savoury food products, for example those
made from 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.
Meanwhile, Note 3 to Chapter 20 indicates that heading 2005
covers products of heading 1105 (i.e., flour, meal, flakes,
granules and pellets of potatoes) which have been prepared or
preserved. In addition, the EN to 2005 indicate that the heading
includes:
[p]roducts in the form of thin rectangular tablets
made from potato flour, salt and small quantities
of sodium glutamate, and partly dextrinised by
successive humidification and dessication. These
products are intended for consumption as "chips"
after deep frying for a few seconds.
In Headquarters Ruling Letters (HRLs) 082009, issued October
23, 1989 and 083132, issued October 23, 1989 Customs classified
snack foods made from a paste composed primarily of potato
granules, potato flour, or other potato solids within heading 2005
as prepared vegetables and those composed primarily of potato
starch and wheat flour within heading 1901 as food preparations of
flour, meal, or starch. In those decisions it was stated that the
products classified within heading 2005 were not only potato, or
vegetable, based products, but also were identifiable as "potato
products." However, it is important to note that the decision did
not provide the actual quantity of each ingredient included in the
products at issue.
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In the instant case, the ingredient breakdown of the product
indicates that the Munchos contain a significant quantity of corn
meal (25 percent) as well as potato starch (8 percent). It is
consistent with the terms of heading 1905 and the applicable EN to
classify such a product as a crisp savory (snack) food product
included within the provision for bakers' wares. As the EN to
heading 1905 provide for bakers' wares comprised of, inter alia,
starch and flour of leguminous vegetables, the fact that the
Munchos contain a vegetable (potato) base does not bar
classification within heading 1905, nor mandate classification
within heading 2005. In other words, the instant product, in its
entirety, is appropriately described as crisp savory snack food
(bakers' ware), as opposed to a prepared or preserved vegetable
(potato).
For the reasons provided above, according to GRI 1, the Munchos
are classifiable within heading 1905 as bakers' wares. The
appropriate subheading is 1905.90.9030.
HOLDING:
The Munchos potato crisps are classified in subheading
1905.90.9030, HTSUSA, as "Bread, pastry, cakes, biscuits and other
bakers' wares...: Other: Other, Corn chips and similar crisp savory
snack foods." The general column one rate of duty is 10 percent
ad valorem.
NYRL 886129 hereby is affirmed.
Advance rulings specifically may be requested with respect to
prospective, current, and ongoing North American Free Trade
Agreement (NAFTA) transactions from the Office of Regulations and
Rulings or the Area Director of Customs, New York Seaport. In this
regard, it is suggested that you consult the procedures relating
to advance NAFTA rulings in interim regulations 19 CFR 181, Subpart
I, as published in the Federal Register of December 30, 1993.
Sincerely,
John Durant, Director
Commercial Rulings Division