CLA-2 CO:R:C:F 950916 LPF
Mr. Gary Anderson
Manager, Entry Processing
John V. Carr & Son, Inc.
P.O. Box 268
Buffalo, NY 14201
RE: Classification of steamed barley and wheat blend in 1104,
HTSUSA; Cereal grains otherwise worked
Dear Mr. Anderson:
This is in response to your letter of October 25, 1991, on
behalf of Martin Mills, Inc. of Elmira, Ontario, Canada. Your
inquiry requests the proper classification of a steamed barley
and wheat blend under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA). A sample was submitted with
your request for a binding ruling.
FACTS:
The product, imported from Canada, is a steamed barley and
wheat blend. The whole grains are cleaned, destoned and then
blended, steamed and rolled into thin flakes. The steaming is
used prior to rolling to prevent the grains from breaking. No
additives are included with these grains. The blend, composed
of a 50/50 mixture by weight of barley and wheat grains, is used
as an ingredient for breakfast cereals. The price of wheat, as
determined by the Ontario Wheat Board, always trades higher than
barley. For instance, wheat would make up approximately 72
percent of the cost of a 50/50 barley and weight blend. In
addition, although the volume weight of barley is about 48 pounds
per bushel and wheat is 60 pounds per bushel, the weight of
clean, plump barley may often exceed 56 pounds per bushel.
ISSUE:
Whether the barley and wheat blend is classifiable in
subheading 1104.11.0000 as cereal grains otherwise worked of
barley, or in subheading 1104.19.0000 as cereal grains otherwise
worked of other cereals.
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LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUSA. The majority of 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. 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 GRI's may
then be applied. The Explanatory Notes (EN's) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international
level, facilitate classification under the HTSUSA by offering
guidance in understanding the scope of the headings and GRI's.
Heading 1104 provides for cereal grains otherwise worked.
The EN's to 1104 indicate that the heading includes, inter alia:
Rolled or flaked grain (e.g., barley or oats), obtained
by crushing or rolling the whole grain (whether or not
dehulled).... In this process, the grain is usually
steam-heated or rolled between heated rollers.
Since the grain in this case is steamed and rolled into thin
flakes, it is classifiable in heading 1104.
At the subheading level, 1104.11.0000 includes rolled or
flaked grains of barley, while 1104.19.0000 includes rolled or
flaked grains of other cereals. According to GRI 6, the GRI's,
section notes and chapter notes pertain to subheadings in the
same fashion.
Since separate HTSUSA subheadings provide for these
components (or ingredients), the product is classified by
applying GRI 3(a) which explains, in pertinent part, that goods
which are classifiable under two or more [sub]headings are
classified under the [sub]heading which provides the most
specific description of the good. However, all such
[sub]headings are regarded as equally specific when each refers
to only part of the substances in the mixed good.
Each of the possible [sub]headings, in this case, refers to
only part of the substances in the mixed good. Since the
[sub]headings are, thus, regarded as equally specific, we do not
classify the product by GRI 3(a) but rather are directed next to
GRI 3(b).
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GRI 3(b) provides that mixtures shall be classified as if
they consisted of the material or component which gives them
their essential character. "Essential character" is the
attribute which strongly marks or serves to distinguish what an
article is. EN VIII to GRI 3(b) explains that bulk, quantity
weight, value or the role of a constituent material (or
substance) in relation to the use of the product are indicia of
essential character. The wheat represents greater value and
slightly greater volume weight than the barley. However, this is
not dispositive of essential character. In fact, based on the
use of the product, neither ingredient imparts essential
character; rather both the wheat and barley function coequally to
create a blend of the grains.
Accordingly, GRI 3(c) explains that goods which cannot be
classified by reference to 3(a) or 3(b) are classified under the
heading which occurs last in numerical order among those which
equally merit consideration. The product, therefore, is
classifiable in subheading 1104.19.0000.
In addition, assuming the product, imported from Canada, is
an "originating good" as defined by General Note 3(c)(vii)(B),
HTSUSA, it will enjoy certain tariff preferences under the United
States-Canada Free Trade Agreement (CFTA).
HOLDING:
The steamed barley and wheat blend is classifiable in
subheading 1104.19.0000, HTSUSA, as "Cereal grains otherwise
worked (for example, hulled, rolled, flaked, pearled, sliced or
kibbled), except rice of heading 1006; germ of cereals, whole,
rolled, flaked or ground: Rolled or flaked grains: Of other
cereals." The general column one rate of duty is 1 cent per
kilogram. However, assuming the product qualifies for tariff
preferences under the CFTA, the special column one rate makes
the product duty free.
Sincerely,
John Durant, Director
Commercial Rulings Division