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HQ H016416




November 28, 2007

CLA-2 OT:RR:CTF:TCM H016416 ARM

CATEGORY: CLASSIFICATION

TARIFF NO.: 1905.90.9030

John M. Peterson, Esq.
Neville Peterson LLP
Counselors at Law
17 State Street- 19th Floor
New York, New York 10004

RE: Classification of Peach Mango Paradise Baked Fruit Crisps

Dear Mr. Peterson:

This is in reply to your request submitted July 27, 2007, seeking a binding ruling concerning the classification of Peach Mango Paradise Baked Fruit Crisps under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise at issue, Peach Mango Paradise Baked Fruit Crisps, is composed of rice flour, potato flakes, dried apples, modified corn starch, corn oil, sugar, whole oat flour, fructose, dextrose, soy lecithin, dried peaches, mono- and di-glycerides, citric acid, beta carotene, annatto extract, monocalcium phosphate, sodium bicarbonate, natural flavors, dried Mangos, and ascorbic acid.

The ingredients comprising the product are blended together with water, sugar and flavoring to form a batter. The batter is then sheeted and cut. The cut pieces are then baked to provide a uniform level of crispiness to each of the fruit crisps. The fruit crisps are then packaged in retail bags typically containing six ounces of product by net weight.

ISSUE:

Whether the fruit crisps are classified based on their status as baked goods or their fruit content.

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods 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 GRIs may then be applied.

When interpreting and implementing the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. Customs and Border Protection (CBP) believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The tariff provisions at issue are the following:

1905 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:

1905.90 Other:

1905.90.90 Other

Corn chips and similar crisp savory snack foods.

2005 Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006:

Other vegetables and mixtures of vegetables:

2005.99 Other:

2005.99.97 Other.

2008 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:

Other, including mixtures other than those of subheading 2008.19:

2008.92 Mixtures:

2008.92.90 Other.

Chapter 20, note 1 states, in pertinent part, the following:

1. This chapter does not cover: . . .

(c) Bakers’ wares and other products of heading 1905;

Explanatory note 19.05 states, in pertinent part, the following:

This heading covers all 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, malt extract or milk, seeds such as poppy, caraway or anise, sugar, honey, eggs, fats, cheese, fruit, cocoa in any proportion, meat, fish, bakery “improvers”, etc. Bakery “improvers” serve mainly to facilitate the working of the dough, hasten fermentation, improve the characteristics and appearance of the products and give them better keeping qualities. The products of this heading may also be obtained from a dough based on flour, meal or powder of potatoes.

The heading includes the following products: . . .

(15) Crisp savoury food products, for example, those made from a dough based on flour, meal or powder of potatoes, or 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.

The heading excludes: . . .

(b) Products of heading 20.05.

Explanatory note 20.05 states, in pertinent part, the following:

The heading also excludes:

Crisp savoury food products of heading 19.05.

Explanatory note 20.08 states, in pertinent part, the following:

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.

Due to the exclusionary note to Chapter 20, the instant merchandise cannot be classified in Chapter 20 if it is described as bakers’ wares of heading 1905, HTSUS. The ENs to headings 19.05 and 20.05 mutually exclude products of the other heading, so the first question under GRI 1 is whether the instant merchandise is described by the terms of heading 19.05, HTSUS.

In Headquarters’ Ruling letter (HQ) 954845, dated May 26, 1994, we affirmed New York Ruling Letter 886129, dated June 9, 1993, finding that potato crisp snacks are classifiable within heading 1905, HTSUS, as other bakers’ wares. The product in that case was made from a batter of potato flakes, corn meal, potato starch yeast and salt. The sheets of batter were cut into two inch diameter discs which were dried and fried in oil, salted and packaged for retail sale. CBP found that the presence of a potato base does not bar classification within heading 1905, HTSUS, or mandate classification within heading 2005. The potato crisp snacks contained significant amounts of corn meal and potato starch and were sold as a crisp savory snack food. Hence, we found that the product is appropriately described as a bakers’ ware, as opposed to a prepared or preserved vegetable.

The instant case is even stronger. First, the product is baked. Although the example in the ENs of crisp savory snack foods includes a fried product, the terms “other bakers’ wares” of the heading favors baked products as included in the heading. Second, like the product in HQ 954845, the instant product begins with dough. In this case, the dough contains fruit and potato flakes, just as the dough contained potato products in HQ 954845, but the dough base of the products favors classification as a bakers’ ware, as described in EN 19.05. To be sure, savory snack foods consisting of fruits or vegetables thinly sliced and deep-fried into fruit or vegetable chips are classified in Chapter 20 (see New York Rulings (NY) 815439, dated October 26, 1995, and 815441, dated October 26, 1995). However, that is not what we have here. The instant product is a fruited dough, sliced, baked and packaged as a savory snack food of heading 1905, HTSUS.

As such, the instant Peach Mango Paradise Baked Fruit Crisps are excluded from classification in headings 2005 and 2008 of Chapter 20, HTSUS, by Note 1(c) to Chapter 20.

HOLDING:

By application of GRI 1, the Peach Mango Paradise Baked Fruit Crisps are classified in heading 1905, HTSUS, specifically in subheading 1905.90.9030, the provision 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: Other: Other: Corn chips and similar crisp savory snack foods.” The 2007 column one general rate of duty is 4.5% ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

Sincerely,

Gail A. Hamill, Chief

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