HQ 089389
April 3,1992
CLA-2 CO:R:C:F 089389 JGH
Robert E. Burke, Esq.
Barnes, Richardson & Colburn
200 East Randolph Drive
Chicago, Illinois 60601
RE: Classification of wafer roses under the Harmonized Tariff
Schedule (HTSUS).
Dear Mr. Burke:
This is in reference to your submission in behalf of Walter
Molzahn & Co., Inc., importers of preformed wafer roses, made in
Italy, to be used as cake decorations.
FACTS:
The products are said to consist of potato flour, corn
starch, palm oil, sunflower oil, soybean oil and food colorings.
They are baked in a waffle-like press to form circular flower
petal rosettes. Then they are arranged and stacked to form the
rose, using a small amount of water to soften the material so
that the rosettes can be joined.
Samples of the finished rosettes were submitted.
ISSUE:
Whether the wafer roses are classifiable under the provision
for sweet biscuits; waffles and wafers in subheading 1905.30.00,
HTSUS, or other bakers' wares, communion wafers, empty capsules
of a kind suitable for pharmaceutical use, sealing wafers, rice
paper and similar products, in subheading 1905.90.90, HTSUS.
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LAW AND ANALYSIS:
It is contended that the provision for waffles and wafers in
subheading 1905.30.00, HTSUS, is an eo nomine provision and
therefore would include any type of wafer.
The Explanatory Notes to the HTSUS provide an interpretation
of the various provisions of the HTSUS at the international
level. 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, 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; ice cream
waffles 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' confectionary 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 distinquish between the various types of wafers for
classification purposes.
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HOLDING:
Wafer roses, commonly based on potato and corn starches,
baked in a waffle-like press, and not intended to be eaten but to
be used as cake decorations, are classifiable under the provision
for other bakers' wares and similar products in subheading
1905.90.90, HTSUS, with a general duty rate of 10 percent ad
valorem.
Sincerely,
John Durant, Director