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HQ 088106

December 10, 1991

CLA-2 CO:R:C:F 088106 SLR


TARIFF NO.: 1901.10.0000

District Director of Customs
477 Michigan Avenue
Detroit, MI 48266

RE: Protest No. 3801-0-001303;
Infant Cereals from Canada

Dear Sir:

This is our decision regarding Application for Further Review of Protest No. 3801-0-001303, filed February 1, 1990, against your decision in the classification of infant cereals entered on September 12, 1989, and liquidated on November 3, 1989.


The merchandise at issue consists of the "Rice", "Mixed", "Barley", "Hi-Protein", and "Oatmeal" baby cereals produced by the H.J. Heinz Company. These cereals are of the type to be added to water, formula, milk, or juice. Their origin, however, is as follows.

At the beginning, the various types of flours (depending upon which of the five cereals is being produced) are dumped into vats holding over 800 gallons and mixed with water and enzymes (the enzymes converting some of the starch to sugar). The resulting mixture displays the consistency of a gruel. This gruel is raised to boiling temperature for at least ten minutes. This de-activates the enzymes. Next, the gruel is pumped into a holding tank where it is stirred at 190 to 200 degrees Fahrenheit. The mixture then travels to a finisher where the gruel is forced through a mesh screen to eliminate any large lumps. The mixture then enters regulator tanks which control the flow of the gruel to drying drums. A pump deposits a wet, thin, continuous film onto the surface of the drums. The drying drums heat the product to 300 degrees Fahrenheit, thus reducing the gruel's moisture content. A dry, thin sheet results. The sheets fall off the drum into a trough, where an auger cuts them into individual flakes and carries them off to a blower. Gravity pulls off the heavy waste while the fine dust waste is sucked out. The good product goes into bins for subsequent packaging.

You liquidated the subject merchandise in subheading 1901.90.9060, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for food preparations of flour, meal, starch or meal extract, not elsewhere specified or included, put up for retail sale, dutiable at 10 percent ad valorem (7 percent for qualifying goods under the United States-Canada Free Trade Agreement (FTA)).

The protestant claims classification in either subheadings 1104.19.0000 or 1904.10.0000 -- the former providing for rolled or flaked cereal grains, the latter providing for prepared foods obtained by the swelling or roasting of cereals or cereal products. Products classifiable in subheading 1104.19.0000, HTSUSA, originating from Canada enjoy duty free status upon entry into the United States under the FTA. Products classifiable in subheading 1904.10.0000, HTSUSA, originating from Canada may enter the U.S. at the reduced rate of 1.7 percent ad valorem under to the FTA.


Whether the infant cereals are classifiable as otherwise worked grains, or swollen or roasted cereal products, or as food preparations of flour not elsewhere specific or included.


Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

Although not legally binding, the Explanatory Notes to the Harmonized Tariff Schedule represent the official interpretation of the tariff at the international level. They offer guidance in understanding the scope of the HTSUSA provisions.

Heading 1104, HTSUSA, provides, in pertinent part, for "[c]ereal grains otherwise worked (for example, hulled, rolled, flaked, pearled, sliced or kibbled)." The Explanatory Note to heading 1104 indicates that "[t]his heading covers all unprepared milling products...." (Emphasis added.) Legal Note 1 to Chapter 11, however, indicates that the chapter does not cover, among other products:

(b) Prepared flours, meals, or starches of heading No. 19.01;

(c) Corn flakes or other products of heading 19.04;

The subject cereals are not classifiable in heading 1104, HTSUSA. The extent of their preparation far exceeds the level of processing contemplated by heading 1104. The question remains whether the cereals are classifiable in heading 1901 or heading 1904.

Heading 1904, HTSUSA, provides, in pertinent part, for "[p]repared foods obtained by the swelling or roasting of cereals or cereal products (for example, corn flakes)." The Explanatory Note to heading 1904 indicates that "[t]his group covers a wide range of food preparations made from cereal grains...which have been made crisp by swelling or roasting." (Emphasis added.) The described processes, in other words, must impart specific properties to the food preparation.

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. Similarly, drying the moist material on a hot drum reduces its moisture content and creates a dry, flat product; however, each cereal product resembles more of a powder than a flake. Accordingly, the subject cereals are not classifiable in heading 1904.

Heading 1901, HTSUSA, provides, in pertinent part, for "food preparations of flour, meal, starch or malt extract...not elsewhere specified or included." The Explanatory Note to heading 1901 indicates, in pertinent part, that:

The preparations of this heading may be
...in the form of powders or granules....

These preparations are often used for making... infant foods...by simply mixing with, or boiling in, milk or water....

The subject preparations are of the type described by the note. Consequently, they are classsifiable in heading 1901.


The baby food cereals are classifiable in subheading 1901.10.0000, HTSUSA, which provides for "food preparations of flour, meal, starch or malt extract...not elsewhere specified or included...preparations for infant use, put up for retail sale." The rate of duty under the General column is 17.5 percent ad valorem.

Articles classifiable under subheading 1901.10.0000, HTSUSA, which have originated from Canada, are entitled to enter the U.S. at the 1989 reduced rate of duty, 15.7 percent ad valorem, upon compliance with all applicable regulations pursuant to the FTA.

Since the rate of duty under the classification indicated above is more than the liquidated rate, you are instructed to deny the protest in full. A copy of this decision should be sent to the protestant along with the Form 19 Notice of Action.


John Durant, Director
Commercial Rulings Division

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