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HQ 003812




December 6, 1995

CLA-2 RR:IA 003812 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 1102.20.0000

Steven B. Lehat
26 Ironbark Way
Irvine, California 92715

RE: Revocation of New York Ruling Letter 836256; Tariff Classification of Corn Flour Products.

Dear Mr. Lehat:

This is in response to your request for reconsideration of New York Ruling Letter (NYRL) 836256, dated February 9, 1989, concerning the tariff classification of certain corn flour products under the Harmonized Tariff Schedule of the United States (HTSUS). Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993) (hereinafter section 625), notice of the proposed revocation of NYRL 836256 was published on November 1, 1995, in the Customs Bulletin, Volume 29, Number 44.

FACTS:

The products, identified as "Regular #1 White" and "Premium #8 White," are comprised of corn flour, as well as the additives sodium propionate, carboxymethyl cellulose and fumaric acid. The latter product also contains the additive sorbic acid. No additive contained in either product amounts to more than one percent by weight of the completed mixture.

ISSUE:

What is the proper tariff classification for the corn flour products?

LAW AND ANALYSIS:

The instant products are comprised primarily of corn flour, as well as small amounts of several additives. The issue presented is whether the additives constitute a mere improvement of the flour such that the products remain classified in heading 1102; or whether the products have been so advanced in condition that they constitute food preparations of heading 1901. In NYRL 836256, the corn flour products were classified as preparations of subheading 1901.90, HTSUS.

Heading 1102, HTSUS, provides for cereal flours other than of wheat or meslin. Subheading 1102.20 provides for corn flour.

The Explanatory Notes (ENs) to the Harmonized System constitute the Customs Cooperation Council's official interpretation of the Harmonized System. They provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the system.

The EN to heading 1102, at page 73, states in pertinent part that:

Flours of this heading may be improved by the addition of very small quantities of mineral phosphates, anti-oxidants, emulsifiers, vitamins or prepared baking powders (self-raising flour).

Flours which have been further processed or had other substances added with a view to their use as food preparations are excluded (generally heading 19.01). (Emphasis supplied).

Thus, the EN indicates that heading 1102 captures flour with small quantities of antioxidants and emulsifiers. The term "antioxidant" refers to substances used to preserve food by retarding deterioration, rancidity, or discoloration due to oxidation. Sodium propionate and sorbic acid are mold inhibitors which act as preservatives. In addition, fumaric acid may also behave as a preservative in food products, as it acts as a bactericide for food products in an aqueous environment.

An "emulsifier" enables the creation of uniformly blended products from ingredients which are not readily combined. Carboxymethyl cellulose (CMC) is an effective emulsifying agent for flour and dough products. It is used to blend flour with other ingredients such as milk, water and eggs. In view of the foregoing, the instant corn flour products contain additives which may be regarded as mere improvements to the flour. Accordingly, they are prima facie classifiable in subheading 1102.20.0000, HTSUS.

Heading 1901 provides in part for food preparations of flour. The EN to heading 1901, HTSUS, at pages 140-141, states in part that:

This heading covers a number of food preparations with a basis of flour or meal, of starch or of malt extract, which derive their essential character from such materials whether or not these ingredients predominate by weight or volume.

Other substances may be added to these main ingredients, such as milk, sugar, eggs, casein, albumin, fat, oil, flavouring, gluten, colouring, vitamins, fruit or other substances to improve their dietetic value, or cocoa powder (in the latter case, in any proportion less than 50% by weight. See the General Explanatory Note to this Chapter).

The preparations of this heading may be liquid or in the form of powders, granules, doughs or other solid forms such as strips or discs.

These preparations are often used for making beverages, gruels, infant food, dietetic foods, etc., by simply mixing with, or boiling in, milk or water, or for making cakes, puddings, custards or similar culinary preparations.

They may also constitute intermediate preparations for the food industry.

The heading includes, inter alia, preparations such as:

(1) Flours obtained by evaporating a mixture of milk with sugar and flour.

(7) Ready-mixed doughs, consisting essentially of cereal flour with sugar, fat, eggs or fruit (including those put up in moulds or formed into final shape).

The EN specifies that heading 1901 covers food preparations with a basis of flour. These include ready-mixed preparations which are essentially final products ready for their intended use. Further, the heading encompasses intermediate preparations for the food industry, including mixtures obtained by blending flour with ingredients designed to improve taste, nutritional value and texture.

It is noted that fumaric acid and sorbic acid possess flavor modifying properties in addition to their role as preservatives. However, in our judgment these additives do not act as flavoring agents for the corn flour at issue when present in very small quantities.

It is also noted that CMC may act as an emulsifier, stabilizer, thickener, preservative or for other purposes depending upon the character of the food product. By its nature, flour is a substance that produces a heavier consistency or body when added to other products. Consequently, we do not believe that the CMC has been added to the flour as a thickener. Moreover, reference materials indicate that CMC is chiefly used in flour as an emulsifier, stabilizer and antioxidant. In view of the foregoing, the addition of the additives to the instant corn flour does not render the product a food preparation of Chapter 19.

HOLDING:

NYRL 836256 is hereby revoked. The subject merchandise is classifiable under subheading 1102.20.0000, HTSUS, which provides for cereal flours other than of wheat or meslin: corn (maize) flour.

In accordance with 19 U.S.C. 1625, this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decision pursuant to section 625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).

Sincerely,

John Durant, Director
Tariff Classification Appeals Division

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