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HQ 956769




February 2, 1996

CLA-2 RR:TC:FC 956769 RC

CATEGORY: CLASSIFICATION

TARIFF NO.: 1704.90.2005; 1806.32.4094

Port Director of Customs
1000 2nd Avenue, Room 2200
Seattle, Washington 98104

RE: Application for Further Review of Protest No. 3004-94-100082, filed May 3, 1994, concerning the classification of granola bars.

Dear Sir:

This is a decision on a protest filed against your decision in the classification of goods entered in 1993; and liquidated February 11, 1994.

FACTS:

The merchandise at issue, products of Canada, are snack foods, described on the invoices as "Crunchy Oat Bars," "Chewy Bars," and "Granola Bars." Samples of two items (honey and almond flavor crunchy oat bar and chocolate chip flavor chewy granola bar) were submitted for our review. Both samples are flat and rectangular measuring approximately 3-3/4 inches long, 1-1/2 inches wide, and 1/4 inch thick. The crunchy granola bar contains 55 percent rolled oats, 22 percent brown sugar, 13.5 percent vegetable oil, 3 percent sliced almonds, 3 percent honey, 1.5 percent sesame seeds, 1.5 percent wheat germ, and less than one percent each of salt and vanilla extract.

The chewy granola bar contains 26 percent rolled oats, 18 percent wheat flour, 14 percent glucose fructose, 11 percent vegetable oil, 10 percent brown sugar, 9.5 percent chocolate chips, 6 percent raisins, 2.4 percent coconut, and less than one percent each of artificial vanilla, sodium bicarbonate, and whey powder. The bars are prepared by (1) blending all ingredients, (2) passing the mixture through a roller, (3) forming a thin sheet, (4) baking,
(5) cutting to size, (6) cooling, and (7) packaging.

You classified the crunchy oat bars in subheadings 1704.90.2005, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for confections containing little or no cocoa, dutiable at 3.5 percent ad valorem (1993); and the chewy chocolate chip bars in subheading 1806.32.4094, HTSUSA, the provision for confections containing cocoa, dutiable at

3.5 percent ad valorem. This represented a change from the protestant's entered classification under subheading 1905.30.0040, HTSUSA, the provision for biscuits, and the protestant's present claim that the proper classification is 1905.90.1050, HTSUSA, the provision for bakers' wares, bearing a free rate of duty under the Generalized System of Preferences (1993).

ISSUE:

Whether baked granola bars containing primarily oats (some containing chocolate chips) are properly classified as sugar confectionery and cocoa preparations or as bakers' wares, whether or not containing cocoa.

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.

Heading 1704 provides for "Sugar confectionery (including white chocolate), not containing cocoa." The EN to subheading 1704.90 identifies the following examples as confections: Gums, boiled sweets, caramels, cachous, candies, nougat, fondants, sugared almonds, Turkish delight, marzipan, preparations put up as throat pastilles or cough drops, white chocolate, liquorice extract, fruit jellies, sugar pastes.

Heading 1806 provides for "Chocolate and other food preparations containing cocoa." The General Explanatory Note to this chapter excepts: Pastry, cakes, biscuits and other bakers' wares, containing cocoa (heading 19.05). Bakers' wares are precluded from classification in chapter 18 by chapter note 1.

Heading 1905 provides for "Bread, pastry, cakes, biscuits and other bakers' wares, whether or not containing cocoa; communion wafers, empty capsules of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products." Subheading 1905.90.1050, HTSUSA, provides for "Pastries, cakes and similar sweet baked products; puddings,"

Classification as bakers' ware depends on the composition and commercial identity of the product under consideration. First, while these crunchy and chewy granola bars are baked, we note granola bars are not usually baked. Secondly, while rolled oats, rather than sugar or cocoa, constitute the primary ingredient of both granola bars, neither the HTSUSA nor the EN's address sugar content in terms of requisite amounts for articles that fall into headings 1704, 1806, and 1905. Only the chewy granola bars contain some wheat flour, an ingredient most often found in bakers' ware. Flour-like substances give bakers' ware a continuous structure. The baking process of batter containing flour chemically alters the ingredients forming the new continuous structure. Yeast or another leavening substance is often used in the batter of bakers' wares, but is not an ingredient of the granola bars. The leavening agent chemically alters the ingredients forming a new continuous structure.

Granola bars are sold as snacks, marketed as healthier than candy bars because they contain less refined sugar, perhaps dried fruit, and wholesome oats. Nevertheless, they are snacks in the same vein as candy bars, in general. They are fully prepared for consumption and sold in vending machines or in grocery stores alongside other snacks such as candy. They generally are not sold in bakeries where one buys bread, pastry, cookies, etc. .
Given the above-stated qualities of the submitted granola bars, we find the crunchy oat bars fall into subheading 1704.90.2005, HTSUSA, the provision for confections containing little or no cocoa, dutiable at 3.5 percent ad valorem (1993); and the chewy chocolate chip bars fall into subheading 1806.32.4094, HTSUSA, the provision for confections containing cocoa, dutiable at 3.5 percent ad valorem.

HOLDING:

The crunchy oat bars fall into subheading 1704.90.2005, HTSUSA, the provision for sugar confectionery (including white chocolate) not containing cocoa, dutiable at 3.5 percent ad valorem (1993), as a product of Canada; and the chewy chocolate chip bars fall into subheading 1806.32.4094, HTSUSA, the provision for chocolate and other food preparations containing cocoa, dutiable at 3.5 percent ad valorem, as a product of Canada.

You are instructed to deny the protest in full. A copy of this decision should be attached to the Customs Form 19, Notice of Action on the protest, to be returned to the protestant.

In accordance with Section 3 A (11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification

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