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HQ 950916

February 3, 1992

CLA-2 CO:R:C:F 950916 LPF


TARIFF NO.: 1104.19.0000

Mr. Gary Anderson
Manager, Entry Processing
John V. Carr & Son, Inc.
P.O. Box 268
Buffalo, NY 14201

RE: Classification of steamed barley and wheat blend in 1104, HTSUSA; Cereal grains otherwise worked

Dear Mr. Anderson:

This is in response to your letter of October 25, 1991, on behalf of Martin Mills, Inc. of Elmira, Ontario, Canada. Your inquiry requests the proper classification of a steamed barley and wheat blend under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was submitted with your request for a binding ruling.


The product, imported from Canada, is a steamed barley and wheat blend. The whole grains are cleaned, destoned and then blended, steamed and rolled into thin flakes. The steaming is used prior to rolling to prevent the grains from breaking. No additives are included with these grains. The blend, composed of a 50/50 mixture by weight of barley and wheat grains, is used as an ingredient for breakfast cereals. The price of wheat, as determined by the Ontario Wheat Board, always trades higher than barley. For instance, wheat would make up approximately 72 percent of the cost of a 50/50 barley and weight blend. In addition, although the volume weight of barley is about 48 pounds per bushel and wheat is 60 pounds per bushel, the weight of clean, plump barley may often exceed 56 pounds per bushel.


Whether the barley and wheat blend is classifiable in subheading 1104.11.0000 as cereal grains otherwise worked of barley, or in subheading 1104.19.0000 as cereal grains otherwise worked of other cereals.


The General Rules of Interpretation (GRI's) taken in their appropriate order provide a framework for classification of merchandise under the HTSUSA. The majority of 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. 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's may then be applied. The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

Heading 1104 provides for cereal grains otherwise worked. The EN's to 1104 indicate that the heading includes, inter alia:

Rolled or flaked grain (e.g., barley or oats), obtained by crushing or rolling the whole grain (whether or not dehulled).... In this process, the grain is usually steam-heated or rolled between heated rollers.

Since the grain in this case is steamed and rolled into thin flakes, it is classifiable in heading 1104.

At the subheading level, 1104.11.0000 includes rolled or flaked grains of barley, while 1104.19.0000 includes rolled or flaked grains of other cereals. According to GRI 6, the GRI's, section notes and chapter notes pertain to subheadings in the same fashion.

Since separate HTSUSA subheadings provide for these components (or ingredients), the product is classified by applying GRI 3(a) which explains, in pertinent part, that goods which are classifiable under two or more [sub]headings are classified under the [sub]heading which provides the most specific description of the good. However, all such [sub]headings are regarded as equally specific when each refers to only part of the substances in the mixed good.

Each of the possible [sub]headings, in this case, refers to only part of the substances in the mixed good. Since the [sub]headings are, thus, regarded as equally specific, we do not classify the product by GRI 3(a) but rather are directed next to GRI 3(b).

GRI 3(b) provides that mixtures shall be classified as if they consisted of the material or component which gives them their essential character. "Essential character" is the attribute which strongly marks or serves to distinguish what an article is. EN VIII to GRI 3(b) explains that bulk, quantity weight, value or the role of a constituent material (or substance) in relation to the use of the product are indicia of essential character. The wheat represents greater value and slightly greater volume weight than the barley. However, this is not dispositive of essential character. In fact, based on the use of the product, neither ingredient imparts essential character; rather both the wheat and barley function coequally to create a blend of the grains.

Accordingly, GRI 3(c) explains that goods which cannot be classified by reference to 3(a) or 3(b) are classified under the heading which occurs last in numerical order among those which equally merit consideration. The product, therefore, is classifiable in subheading 1104.19.0000.

In addition, assuming the product, imported from Canada, is an "originating good" as defined by General Note 3(c)(vii)(B), HTSUSA, it will enjoy certain tariff preferences under the United States-Canada Free Trade Agreement (CFTA).


The steamed barley and wheat blend is classifiable in subheading 1104.19.0000, HTSUSA, as "Cereal 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: Rolled or flaked grains: Of other cereals." The general column one rate of duty is 1 cent per kilogram. However, assuming the product qualifies for tariff preferences under the CFTA, the special column one rate makes the product duty free.


John Durant, Director
Commercial Rulings Division

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