CLA-2 CO:R:C:F 089088 EAB
District Director
U.S. Customs Service
Hemisphere Center
Routes 1 & 9 South
Newark, New Jersey 07114
Re: Application for Further Review of Protest No. 1001-0-
001545, dated September 11, 1990, concerning rose
wafers; HRL 089389
Dear Sir:
This is a decision on a protest filed September 11, 1990,
against your decision in the classification of merchandise
liquidated June 15, 1990.
FACTS:
The protestant entered the goods under subheading
1905.30.0040, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), a provision for, inter alia, pastry, biscuits
and other bakers' wares, whether or not containing cocoa,
waffles, other, to be entered free of duty.
The goods were reclassified under subheading 1901.90.90,
HTSUSA, a provision for food preparations of starch, not
containing cocoa powder, not elsewhere specified or included,
other, other, other, other, dutiable at the general rate of 10
percent ad valorem.
Protestant, through counsel, urges in the alternative that
the goods be classified under either subheading 1905.30.00,
HTSUSA, or subheading 1905.90.10, HTSUSA, a provision for pastry,
biscuits and other bakers' wares, whether or not containing
cocoa, other, to be entered free of duty.
No sample was submitted to this office for analysis. It
appears that no sample was analyzed at any time relevant or
material to the importation. The goods are used as decorative
toppings for cakes and other confections. You state that
"Information on file from another port, for the same merchandise,
indicates [that] they are baked articles composed of potato
starch, corn starch, vegetable oil and food color. This
information also claims, contrary to the protestant's statement,
[that] the wafer products are not edible."
ISSUE:
What is the proper classification under the HTSUSA of rose
wafers?
LAW AND ANALYSIS:
The Explanatory Notes to the HTSUS provide an interpretation
of the various provisions of the HTSUS at the international
level.
Heading 1901 covers in part food preparations of starch.
The Notes for heading 1901 state that such preparations may be
liquid or in the form of powders, granules, doughs or other solid
forms such as strips or discs, and are often used for making
cakes. We take the foregoing to exclude baked decorative items
such as the rose wafers at issue.
The Notes for heading 1905 state that the provision covers
all bakers' wares, and divide the provision into two parts: (A)
covering bread, pastry, cakes, biscuits and other bakers' wares;
and part (B) covering communion wafers, empty pharmaceutical
capsules, and sealing wafers.
Waffles and wafers which the Notes place in part (A) are
described as light bakers's wares baked between patterned metal
plates; they include thin waffle products, which may be rolled
and contain a filling between the thin waffle pastry; cone-shaped
waffles for ice cream as well as chocolate covered ones are
mentioned.
In contrast, part (B) emphasizes that it covers a number of
products made from flour or starch pastes, which are generally
baked in the form of discs or sheets, and used for various
purposes. Included in this section are not only the communion
wafers and drug capsules but also sealing wafers, which are
described as being cut out of thin sheets of baked, dried, and
sometimes colored paste.
It is apparent from the product descriptions in the
Explanatory Notes that subheading 1905.30 is intended to cover
dessert type products. In contrast, it is understood that the
wafers in issue are not intended to be eaten but to be used as
decorations. Thus, it can not be concluded that subheading
1905.30.00 is an eo nomine provision for wafers but is limited to
wafers which are to be eaten as bakers' confectionery products -
a form of waffles. This conclusion is believed supported by the
Notes description in part (B) of communion wafers as thin discs
of very pure wheat paste that are cooked between iron plates. So
that even though the communion wafer may be a type of wafer, it
is not the same wafer that is identified with the waffle.
Furthermore, it is interesting to note that the Explanatory Notes
to the Combined Nomenclature of the European Communities lists
communion wafers and sealing wafers in subheading 1905.90, rather
than 1905.30. Therefore, it is quite clear that there was an
intention to distinguish between the various types of wafers for
classification purposes.
HOLDING:
Rose wafers based on starches and vegetable oil and baked in
a waffle-like press, and not intended to be eaten in and of
themselves but to be used as cake decorations, are classifiable
under the provision for other bakers' wares and similar products
in subheading 1905.90.9090, HTSUSA. Goods entered under this
subheading in 1990 were dutiable at the column one general rate
of duty of 10 percent ad valorem.
Since the rate of duty for the independently arrived at
classification is the same as the rate for the liquidated
classification, you are instructed to deny the protest in full.
A copy of this decision should be attached to the Customs
Form 19 to be returned to the protestant.
Sincerely,
John Durant, Director