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HQ 967056




June 16, 2004

CLA-2 RR:CR:TE 967056 TMF

CATEGORY: CLASSIFICATION

TARIFF NO.: 1904.90.0120

Mr. Bob Kerr
Marlow Foods Limited
Station Road
Stokesley, North Yorkshire
England TS9 7AB

RE:     Reconsideration of New York Ruling Letter (NY) K81070, dated December 4, 2003, regarding classification of rice preparations from England

Dear Mr. Kerr:

This letter is in response to your letters dated February 24, 2004 and March 5, 2004, in which you requested reconsideration of New York Ruling Letter (NY) K81070 dated December 4, 2003, which was issued to you concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of certain rice preparations that your company produces.

In NY K81070, CBP classified the merchandise in subheading 1904.90.0120, HTSUSA, which provides, in part, for “cereals (other than corn (maize)) in grain form or in the form of flakes or other worked grainspre-cooked or otherwise preparedFrozen.”

You contend that the subject product should be classified in subheading 2106.90.9995, HTSUSA, which provides for other food preparations not elsewhere specified or included, frozen. Upon your request, we have reviewed NY K81070 and find this ruling to be correct based on the reasons set forth herein.

FACTS:

The subject products are described in NY K81070 as: “The Quorn brand of Sauté Creations - Mexican, Tikka, and Biryani” are frozen rice-based food preparations composed mainly of pre-cooked rice (53 percent, 46.6 percent, and 44.7 percent, respectively), Quorn (a myco-protein product), vegetables, and other flavorings, put up in retail packages.” The preparation process involves the consumer heating the product in a skillet with a small amount of oil for approximately 10 minutes.

In your letter dated February 24, 2004, you stated that the rice products will be exclusively sourced from packers within the United States. You requested that our office reclassify the goods because similar products that are sold in the U.S. and imported from the European Community carry a lower tariff rate. You also stated that you would amend your specification to achieve a lower duty rate.

Your company’s website provides information as to the Mexican Sauté but not the Tikki and Biryani Sautés. We note that the myco-protein in the Mexican Sauté is described as 13 percent of the Mexican flavor brand.

ISSUE:

Whether the subject food products are classifiable in heading 1904 or heading 2106, HTSUSA.

LAW AND ANALYSIS:

  Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings.

You maintain that the goods should be classified as other frozen food preparations within heading 2106, HTSUSA, citing as support the ready-made frozen and packed Vegetable Korma and Vegetable Chili classified in NY G88476, dated March 29, 2001, and the fact that those products contained 46.3 and 44.9 percent rice, respectively.

In the instant case, you refer to the subject sauté creations as rice-based preparations. In NY K80170, the goods were also described as rice-based food preparations which contained mainly precooked rice, Quorn, vegetables and other flavorings put up in retail products.

You indicated in your September 26, 2003 letter that the principal ingredient was the myco-protein. However, according to your submitted detailed product outline, the Quorn Tikka Skillet Sauté is made principally of white rice (46.60 percent); myco-protein pieces (17.60 percent); carrots (14.70 percent); sweet corn and green beans (7.70 percent each).

Explanatory Note (D) to heading 1904 refers to “Other cereals, other than maize (corn), pre-cooked or otherwise prepared,” and states, in pertinent part:

[T]he group covers, for example, products consisting of pre-cooked rice to which other ingredients such as vegetables or seasonings have been added, provided that these other ingredients do not alter the character of the products as rice preparations.

In this instance, the subject food products principally consist of pre-cooked rice, myco-protein pieces, and three vegetables and seasonings. Although the ready-made frozen Vegetable Korma and Vegetable Chili of NY G88476 contained large quantities of rice, they were marketed and sold as vegetables and the vegetables were the dominant presence in the product. We note that the Vegetable Korma contained seven vegetables making up 46 percent of the product, and the Vegetable Chili contained eight vegetables making up 51 percent of the Chili product.

However, this is not the case with the subject three sautés, as they are marketed in the United States as hot vegetarian meals, not as meat substitutes. Further, their presentation is as rice-dominant food products that contain a small portion of myco-protein pieces and vegetables. Unlike the Vegetable Korma and Chili of NY G88476, which had a major presence in quantity and percentage of vegetables, we find no indication that the Quorn in the instant food products is the dominant ingredient.

As stated in the facts, the website shows the myco-protein portion in the Mexican Simply Sauté to constitute 13 percent of the product and the myco-protein is listed after the cooked rice ingredient. Further, with regard to the Mexican dish on your website, we note that the rice is presented as a predominant ingredient, not the myco-protein or the vegetables.

Consequently, we find that character of the Sauté lines is not altered by the addition of the vegetables and Quorn. However, in the case of the Vegetable Korma and Chili of NY G88476, the character of these products was significantly affected by the inclusion of the vegetables, resulting in the proper classification of those two products in heading 2106, HTSUSA.

Therefore, as the three subject Sautés are marketed as meat-free meals that have predominant characteristics of rice meals which are unaltered by the additional vegetable and Quorn ingredients, they remain correctly classified as rice-based food preparations in heading 1904, HTSUSA.

HOLDING:

NY K81070 dated December 4, 2003 is hereby affirmed. The subject Quorn brand of Sauté Creations - Mexican, Tikka, and Biryani in subheading 1904.90.0120, HTSUSA, which provides for “cereals (other than corn (maize)) in grain form or in the form of flakes or other worked grainspre-cooked or otherwise preparedFrozen.” The general column one rate of duty is 14 percent ad valorem.

Sincerely,

Myles B. Harmon, Director

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