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HQ 951061


May 26, 1992

CLA-2 CO:R:C:F 951061 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 1904.90.00

Mr. M. Shehirian
Shehirian Co.
14 Elinor Ave.
Scarboro, Ontario, Canada M1R 3H2

RE: Bulgur Wheat Product

Dear Mr. Shehirian:

This is in reference to your letter of January 16, 1992, regarding the classification of your bulgur wheat product. You supplied a sample of the product.

FACTS:

The product under consideration is a bulgur wheat product, a processed whole wheat made from grains that have been parboiled, dried and cracked. The product is eaten as a breakfast food or as a side dish with meat or vegetables. A laboratory analysis of the product showed a product in the form of small, brown, free- flowing particles, 79.8 percent of which were capable of passing through a screen with an aperture of 1.25 millimeters.

ISSUE:

What is the tariff classification of bulgur wheat?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification is
to be determined in accordance with the terms and headings and any relevant section and chapter notes. If GRI 1 fails to classify the goods, and if the heading and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

In considering the proper classification of bulgur wheat which is a human food product derived from wheat, a cereal grain, we noted several possible chapters of the HTSUSA in which the product might be classified, i.e., Chapters 10, 11, 19, HTSUSA.

In considering the various chapters we noted that the product, which has been parboiled, dried and cracked, is excluded from Chapter 10, HTSUSA, pursuant to Legal Note 1(b) thereof. That note specifically provides that the chapter does not cover grains which have been hulled or otherwise worked.

We next considered the possibility of classifying the product in Chapter 11, HTSUSA, as a product of the milling industry. Products of the milling of wheat may fall in such chapter if they meet the criteria noted in Legal Notes 2 and 3(b) regarding the ash content and particle size of the product, or if they have not been "otherwise prepared". However, based on the laboratory report which indicates that less than 95 percent of the product passes through a woven metal wire cloth sieve with an aperture of 1.25mm and the processing operations (parboiling), classification in Chapter 11, HTSUSA, is not appropriate.

Accordingly, we have concluded that the product should be classified in Chapter 19, HTSUSA. We examined Heading 1904, HTSUSA, which provides, in pertinent part, for "[p]repared foods obtained by the swelling or roasting of cereals or cereal products (for example, corn flakes)." Explanatory Note (EN) 19.04 to the Harmonized System, which represents the view of the international classification experts, indicates that "[t]his group covers a wide range of food preparations made form 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.

In regard to the product under consideration, while some expansion of the wheat grains may occur as a result of the addition of water and heat, the resulting good product has not been "made crisp" by this operation. Also, there is no indication that wheat grains have been roasted to produce a food
who crispness is, or at any point will be, a significant feature. Thus, there has not be a change in the basic structure of the grain which would be necessary for the classification of the product in subheading 1904.10.00, HTSUSA.

We next considered subheading 1904.90.00, HTSUSA, which provides for cereals in grain form, pre-cooked or otherwise prepared, which, in accordance with the EN's may also be in broken grain form. The Bulgur wheat in this case has been partially pre-cooked, dried, and the grains broken into small particles. Thus, we believe that the instant product is covered by the aforementioned subheading.

HOLDING:

Bulgur wheat which has been parboiled, dried and cracked is classifiable in subheading 1904.90.00, HTSUSA, and is subject to a general rate of duty of 17.5 per cent ad valorem

Bulgur wheat, the product of Canada, is, in accordance with General Note 3(c)(vii)(B), HTSUSA, eligible for a reduced rate of duty, upon compliance with the provisions of the United States - Canada Free Trade Agreement and section 10.301 et seq., Customs Regulations (19 CFR 10.301 et seq.).

Sincerely,

John Durant, Director
Commercial Rulings Division

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