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HQ 089389


April 3,1992

CLA-2 CO:R:C:F 089389 JGH

CATEGORY: CLASSIFICATION

TARIFF NO.: 1905.90.9090

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.

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.

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

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