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HQ 954845


May 26, 1994

CLA-2 CO:R:C:F 954845 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 1905.90.9030

John M. Peterson, Esq.
Neville, Peterson & Williams
39 Broadway
New York, NY 10006

RE: Reconsideration of NYRL 886129; "Munchos" potato crisp snack food in heading 1905 as bread, pastry, cakes, biscuits and other bakers' wares; Not heading 2005, prepared vegetables; HRLs 082009 and 083132

Dear Mr. Peterson:

This is in response to your letter of August 16, 1993, requesting reconsideration of New York Ruling Letter 886129, issued June 9, 1993. In that ruling potato crisps were classified in subheading 1905.90.9030, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as "Bread, pastry, cakes, biscuits and other bakers' wares...: Other: Other, Corn chips and similar crisp savory snack foods." As requested, we have reviewed that ruling. The correct classification follows.

FACTS:

"Munchos," produced in Mexico, are a snack food described as potato crisps. They are made from a batter composed of dehydrated potato flakes (64.6%), corn meal (25.4%), potato starch (8.1%), yeast (1.1%), and salt (0.5%). Thin, two inch diameter discs are cut from sheets of this batter, dried, fried in oil, salted, and packaged for retail sale. The puffed, curled products are similar in appearance to potato chips.

ISSUE:

Whether the Munchos potato crisp snacks are classifiable within heading 1905 as bread, pastry, cakes, biscuits and other bakers' wares or within heading 2005 as other vegetables prepared or preserved.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of
merchandise under the HTSUS. Most 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. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs.

The headings meriting consideration in this case are heading 1905 providing for bread, pastry, cakes, biscuits and other bakers' wares and heading 2005 providing for other vegetables prepared or preserved. The EN to 1905 indicate that the heading includes:

[a]ll bakers' wares. The most common ingredients of such wares are cereal flours, leavens and salt but they may also contain other ingredients such as: gluten, starch, flour of leguminous vegetables....

The heading includes...

(15) Crisp savoury food products, for example those made from a dough based on maize (corn) meal with the addition of a flavouring consisting of a mixture of cheese, monosodium glutamate and salt, fried in vegetable oil, ready for consumption.

Meanwhile, Note 3 to Chapter 20 indicates that heading 2005 covers products of heading 1105 (i.e., flour, meal, flakes, granules and pellets of potatoes) which have been prepared or preserved. In addition, the EN to 2005 indicate that the heading includes:

[p]roducts in the form of thin rectangular tablets made from potato flour, salt and small quantities of sodium glutamate, and partly dextrinised by successive humidification and dessication. These products are intended for consumption as "chips" after deep frying for a few seconds.

In Headquarters Ruling Letters (HRLs) 082009, issued October 23, 1989 and 083132, issued October 23, 1989 Customs classified snack foods made from a paste composed primarily of potato granules, potato flour, or other potato solids within heading 2005 as prepared vegetables and those composed primarily of potato starch and wheat flour within heading 1901 as food preparations of flour, meal, or starch. In those decisions it was stated that the products classified within heading 2005 were not only potato, or vegetable, based products, but also were identifiable as "potato products." However, it is important to note that the decision did not provide the actual quantity of each ingredient included in the products at issue.

In the instant case, the ingredient breakdown of the product indicates that the Munchos contain a significant quantity of corn meal (25 percent) as well as potato starch (8 percent). It is consistent with the terms of heading 1905 and the applicable EN to classify such a product as a crisp savory (snack) food product included within the provision for bakers' wares. As the EN to heading 1905 provide for bakers' wares comprised of, inter alia, starch and flour of leguminous vegetables, the fact that the Munchos contain a vegetable (potato) base does not bar classification within heading 1905, nor mandate classification within heading 2005. In other words, the instant product, in its entirety, is appropriately described as crisp savory snack food (bakers' ware), as opposed to a prepared or preserved vegetable (potato).

For the reasons provided above, according to GRI 1, the Munchos are classifiable within heading 1905 as bakers' wares. The appropriate subheading is 1905.90.9030.

HOLDING:

The Munchos potato crisps are classified in subheading 1905.90.9030, HTSUSA, as "Bread, pastry, cakes, biscuits and other bakers' wares...: Other: Other, Corn chips and similar crisp savory snack foods." The general column one rate of duty is 10 percent ad valorem.

NYRL 886129 hereby is affirmed.

Advance rulings specifically may be requested with respect to prospective, current, and ongoing North American Free Trade Agreement (NAFTA) transactions from the Office of Regulations and Rulings or the Area Director of Customs, New York Seaport. In this regard, it is suggested that you consult the procedures relating to advance NAFTA rulings in interim regulations 19 CFR 181, Subpart I, as published in the Federal Register of December 30, 1993.

Sincerely,

John Durant, Director
Commercial Rulings Division

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