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HQ 955885




December 16, 1996

CLA-2 RR:TC:FC 955885 K

CATEGORY: CLASSIFICATION

TARIFF NO.: 2008.92.10

Port Director
U.S. Customs Service
477 Michigan Ave.
Patrick V. McNamara Building
Detroit, Michigan 48226-2568

RE: Application For Further Review of Protest No. 3801-3-103441; Kellogg's Mueslix Crispy
Blend Cereal

Dear Port Director:

The following is our response to the referral by the former office of the District Director, dated February 8, 1994, of the request for further review of the above-referenced protest.

FACTS:

The consumption entries covering the imported food products from Canada were liquidated on June 18, 1993, under the provision for other mixtures in airtight containers of fruit, nuts and other edible parts of plants, otherwise prepared or preserved, not elsewhere specified or included, in subheading 2008.92.10, Harmonized Tariff Schedule of the United States (HTSUS) (1992 & 1993), with duty at the general rate of 7 percent ad valorem or at the special rate applicable for products of Canada of 3.5 percent ad valorem. A timely classification protest under 19 U.S.C. 1514 was received on September 15, 1993. The protestant requests reliquidation of the entries under the provision for prepared foods obtained by the swelling or roasting of cereals or cereal products, in subheading 1904.10.00, HTSUS (1992 & 1993), with duty at the general rate of 2.5 percent ad valorem or at the special rate applicable for products of Canada of 1.5 percent ad valorem. Samples of the merchandise were submitted. Additional submissions were submitted dated July 18, 1994, February 10, 13, 15, 21, March 10, April 5, and June 14, 1995, and April 29, 1996. Meetings were requested and were held on February 16 and December 13, 1995.

The food product is a cold breakfast cereal known as Mueslix Crispy Blend imported in air tight containers. The food product consists of Kenmei Flakes, Just Right Flakes and rolled oats that have been roasted. The food product also contains rolled barley that has not been roasted. The rest of the main ingredients consist of raisins, dates, and almonds.

In a submission dated July 18, 1994, the protestant opines (on the basis that the rolled barley was not swelled or roasted) that the product, as a mixture of swelled or roasted cereals and cereals not swelled or roasted, was classified by virtue of rule 3(b) of the General Rules of Interpretation (GRI), HTSUS, in subheading 1904.10.00, HTSUS. However, in subsequent submissions, the protestant opines that the rolled barley has been swelled. It is stated that the starch granules in the barley grains swell as a result of the application of controlled amounts of heat and moisture. The controlled swelling, while extremely small, is critical to the integrity of the grain as it proceeds to the subsequent stages of flaking and drying. The protestant concludes that the barley flakes are prepared by swelling, and, since all of the cereals in the food product have been prepared by the swelling or roasting of cereals, the food product is classified in subheading 1904.10.00, HTSUS, by virtue of GRI 1, HTSUS.

For purposes of this decision, we assume that the technical information submitted by the protestant is accurate. We also assume that when barley cereal grains are steamed for purposes of making rolled or flaked grains, that there is some swelling of the starch granules in the grains.

ISSUE:

The issue is whether the rolled barley also has been prepared by swelling or roasting, so that the food product is classifiable by virtue of GRI 1, HTSUS, in subheading 1904.10.00, HTSUS (1992 and 1993), as prepared foods obtained by swelling or roasting of cereals or cereal products.

If the rolled barley is not considered to be swelled or roasted, the issue presented is the proper classification under the 1992 and 1993 HTSUS of a mixture of swelled or roasted cereal products, and cereal products that have not been swelled or roasted containing raisins, dates, and almonds.

LAW AND ANALYSIS:

The classification of imported merchandise under HTSUS is governed by the principles set forth in the GRI. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section and chapter notes and, unless otherwise required, according to the remaining GRI, taken in their appropriate order

Heading 1904, HTSUS (1992 and 1993), provides for prepared foods obtained by the swelling or roasting of cereals or cereal products (for example, cornflakes); cereals, other than corn (maize), in grain form, pre-cooked or otherwise prepared. Subheading 1904.10.00, HTSUS (1992 & 1993), provides for prepared foods obtained by the swelling or roasting of cereals or cereal products. The Explanatory Notes (EN) 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 General Rules of Interpretation of the HTSUS. The EN for heading 1904 ( 1992 & 1993) state as follows:

Prepared foods obtained by the swelling or roasting of cereals or cereal products (for example, corn flakes).

This group covers a range of food preparations made from cereal grains (maize, wheat, rice, barley, etc.) which have been made crisp by swelling or roasting. They are mainly used, with or without milk, as breakfast foods. Salt, sugar, molasses, malt extract, fruit or cocoa powder (see Note 3 and the General Explanatory Note to this Chapter), etc., may have been added during or after their manufacture.

The group also includes similar foodstuffs obtained, by swelling or roasting, from flour or bran.

Corn flakes are made from grains of maize by removing the pericarp and the germ, adding sugar, salt and malt extract, softening with steam and then rolling into flakes and roasting in a rotary oven. The same process may be applied to wheat or other cereal grains.

"Puffed" rice and wheat also fall in this group. These products are prepared by subjecting the grains to pressure in a moist, heated chamber. Sudden removal of the pressure and ejection into a cold atmosphere causes the grain to expand to several times its original volume.

This group further includes crisp savoury food products, obtained by submitting moistened cereal grains (whole or in pieces) to a heating process which makes the grains swell, these being subsequently sprayed with a flavouring consisting of a mixture of vegetable oil, cheese, yeast extract, salt and monosodium glutamate. Similar products made from a dough and fried in vegetable oil are excluded (heading 19.05).

The EN for heading 1904 refer to cereals such as corn flakes or "Puffed" rice which have been made crisp and expanded to several times its original volume.

In our meeting on December 13, 1995, we expressed an opinion that the rolled barley as described was not "swelled or roasted" as those terms are explained in the EN for heading 1904. We also expressed an opinion that the rolled barley, if imported separately, would be classified as rolled or flaked grains of barley, in subheading 1104.11.00, HTSUS, and that as this fact was relevant to the classification of the mixture, the protestant would have to overcome this classification.

Heading 1104, HTSUS, provides for grains otherwise worked (for example, hulled, rolled, flaked, pearled, sliced or kibbled), except rice of heading 1006: germ of cereals, whole, rolled, flaked or ground. The EN for Chapter 11, HTSUS, state that Chapter 11 excludes "Puffed rice, corn flakes and the like, obtained by swelling or roasting (heading 19.04)". The EN for heading 1104, HTSUS, which includes, in part, rolled or flaked grains, state that the heading covers

(1) Rolled or flaked grain (e.g., barley or oats), obtained by crushing or rolling the whole grain (whether or not dehulled) or kibbled grain or the products described in Items (2) and (3) below and in Items (2) to (5) of the Explanatory Note to heading 10.06. In this process, the grain is usually steam-heated or rolled between heated rollers. Breakfast foods of the "corn flakes" type are cooked preparations ready for consumption and therefore fall, like similar cooked cereals, in heading 19.04. (Emphasis added.)

Again, the EN refers to breakfast foods of the "corn flakes" type that are cooked preparations ready for consumption and, therefore, like similar cooked cereals, are classified in heading 1904, HTSUS. But in particular, the EN for heading 1104, makes it clear that it covers rolled or flaked grains that are usually steam-heated or rolled between heated rollers. In this case, the grains are steamed-heated prior to the flaking in flaking mill rolls.

Heading 1904, HTSUS, which is statutory law, refers to prepared foods by the swelling or roasting of cereals or cereal products and contains in parenthesis, "for example, corn flakes". Corn flakes, both in the statutory heading 1904 and in the EN has been consistently offered as an example of a cereal that is prepared by swelling or roasting.

In the submission dated April 29, 1996, the protestant indicates that unlike the European-style of rolled barley that is typically cold-rolled, its barley is steamed prior to rolling and results in irreversible swelling of the starch granules. The EN indicates that steam-heating or rolling between heated rollers to make rolled or flaked grains is permitted for products of heading 1104. Unlike cornflakes and puffed rice where one can readily observe that the swelling and roasting process results in a crisp prepared cereal product that has expanded to several times its original volume, the increase in the volume of the starch granules of this product is microscopic, that is, it is so small as to be invisible or obscure except through a microscope.

We conclude that the rolled barley in question has not been made crisp, has not been expanded to several times its original volume (like corn flakes or puffed rice), that the controlled heat and moisture process of the barley which results in microscopic expansion of the starch granules present in the barley grains does not result in the swelling or roasting of cereals. Further, the product is commercially known as rolled or flaked barley, the protestant refers to it as rolled or flaked barley, and it is specifically provided for by its commercial name in subheading 1104.11.00, HTSUS.

Our precedential rulings support this position. In Headquarters Ruling Letter (HRL) 950916, dated February 3, 1992, also cited by the protestant, the merchandise consisted of barley and a wheat blend that were steamed and rolled into thin flakes. There are three subheadings for rolled or flaked cereals; subheading 1104.11.00, of barley; subheading 1104.12.00, of oats; and subheading 1104.19.00, of other cereals. The classification issue did not concern competing headings but did concern competing subheadings within heading 1104. Since the product consisted of a mixture of rolled flakes of barley and a wheat blend, as a mixture, we held that the product was classified as other rolled or flaked cereals, in subheading 1104.19.00. The ruling cited with approval the EN for heading 1104 which state that the heading includes grains that are usually steam-heated or rolled between heated rollers.

In HRL 088106, dated December 10, 1991, we ruled out classification for an infant cereal in heading 1104 by noting that the product went beyond the preparation of the level of processing for heading 1104. The ruling cited with approval the EN (1991) for heading 1904 that state it covers cereal grains that have been made crisp by swelling or roasting. We then ruled out classification of the cereal in heading 1904 by stating that "while some expansion of the dry ingredients may occur as a result of the addition of water and heat, the resulting food product has not been 'made crisp' by this operation." A similar position was taken in HRL 951061, dated May 26, 1992.

Accordingly, we conclude that the instant rolled barley is not swelled within the meaning of heading 1904, HTSUS (1992 and 1993). Moreover, in view of the terms of heading 1904, as a mixture of cereals some of which are swelled or roasted and some of which are not, the product is not classified in heading 1904 on the basis of GRI 1. Similarly, heading 1104 describes the rolled barley portion of the instant product.

Heading 2008, HTSUS, provides for fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included. The EN to heading 2008, state in part, as follows:

This heading covers fruit, nuts and other edible parts of plants, whether whole, in pieces or crushed, including mixtures thereof, prepared or preserved otherwise than by any of the processes specified in other Chapters or in the preceding headings of this Chapter. (Emphasis added.)

Heading 2008, HTSUS, thus describes a food preparation which consists of a mixture of fruits, nuts, and other parts of plants, the precise ingredients of the food preparation under consideration in this protest. The food product contains fruits, nuts, and other parts of plants that are otherwise prepared or preserved and that are not elsewhere provided for. Accordingly, we conclude that the food product is classified in heading 2008 by virtue of GRI 1. Within that heading, the food product is classified in subheading 2008.92.10, HTSUS, by virtue of GRI 1.

This conclusion is supported by our previous rulings on this issue. New York Ruling Letter (NYRL) 873226, dated April 21, 1992, and affirmed by Headquarters Ruling Letter 952511, dated December 29, 1992, held that food products composed of cereals that have been prepared by swelling or roasting that are mixed with cereals that have not been prepared by swelling or roasting, with added sweeteners, fruit, and nuts, and packed in non-airtight containers, were classified in subheading 2008.92.9090, HTSUS. We adhere to that decision. In this protest, a similar food product containing a mixture of cereals, some of which has and some of which has not been roasted or swelled, packed in airtight containers, is classified in subheading 2008.92.10, HTSUS.

Because we conclude that the text of heading 2008 describes specifically the entire preparation under consideration in this protest, and that the headings 1104 and 1904 do not describe such a mixture, classification is on the basis of GRI 1. Accordingly, neither GRI 2(b) nor the essential character test of GRI 3(b) are reached.

Further, at the international level, The Harmonized System Committee has held that a "Musli" type breakfast cereal containing unroasted cereal flakes, dried fruit, nuts, sugar, honey, etc., put up for retail sale, was classified in subheading 2008.92. See Document 36.300 E, dated November 6, 1990 at Annex F. See Compendium of Classification Opinions, dated July 1995. This conclusion can be seen as recognizing the broad scope of heading 2008.

HOLDING:

Food products composed of cereals that have been prepared by swelling or roasting that are mixed with cereals that have not been prepared by swelling or roasting, with added sweeteners, fruit, and nuts, and packed in airtight containers, are classified in subheading 2008.92.10, HTSUS (1992 & 1993), as "Fruit, nuts, and other edible parts of plants, otherwise prepared or preserved..., not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Mixtures: In airtight containers and not containing apricots, citrus fruits, peaches or pears", with a general rate of 7 percent ad valorem or at the special rate applicable for products of Canada of 3.5 percent ad valorem.

You are directed to deny the protest in full.

For purposes of general information, pursuant to a change in the Harmonized System Committee, heading 1904 was amended to include cereals, in the form of flakes or other worked grains (except flour and meal). In addition, a new subheading 1904.20 was added to cover prepared foods obtained from unroasted cereal flakes or from mixtures of roasted cereal flakes and roasted cereal flakes or swelled cereals. Accordingly, in conformity with the changes at the international level, the 1996 HTSUS was amended under applicable law by Presidential Proclamation 6857, dated December 11, 1995 (60 FR 64817), by adding to heading 1904 the words "or in the form of flakes or other worked grains (except flour and meal)". A new subheading was added, subheading 1904.20.10, HTSUS (1996), which provides for prepared foods obtained from unroasted cereal flakes or from mixtures of unroasted cereal flakes and roasted cereal flakes or swelled cereals, in airtight containers and not containing apricots, citrus fruits, peaches or pears, with duty at the general rate of 6.5 percent ad valorem or at the special rate applicable for products of Canada of 1.4 percent ad valorem. The product as described in this decision, is classified under the HTSUS for 1996, in subheading 1904.20.10.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision and any reliquidations of entries in accordance with this decision must be accomplished prior thereto. Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this 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
Appeals Division

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