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HQ 089088

April 3, 1992

CLA-2 CO:R:C:F 089088 EAB


TARIFF NO.: 1905.90.9090

District Director
U.S. Customs Service
Hemisphere Center
Routes 1 & 9 South
Newark, New Jersey 07114

RE: Application for Further Review of Protest No. 1001-0- 001545, dated September 11, 1990, concerning rose wafers; HRL 089389

Dear Sir:

This is a decision on a protest filed September 11, 1990, against your decision in the classification of merchandise liquidated June 15, 1990.


The protestant entered the goods under subheading 1905.30.0040, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), a provision for, inter alia, pastry, biscuits and other bakers' wares, whether or not containing cocoa, waffles, other, to be entered free of duty.

The goods were reclassified under subheading 1901.90.90, HTSUSA, a provision for food preparations of starch, not containing cocoa powder, not elsewhere specified or included, other, other, other, other, dutiable at the general rate of 10 percent ad valorem.

Protestant, through counsel, urges in the alternative that the goods be classified under either subheading 1905.30.00, HTSUSA, or subheading 1905.90.10, HTSUSA, a provision for pastry, biscuits and other bakers' wares, whether or not containing cocoa, other, to be entered free of duty.

No sample was submitted to this office for analysis. It appears that no sample was analyzed at any time relevant or material to the importation. The goods are used as decorative toppings for cakes and other confections. You state that "Information on file from another port, for the same merchandise, indicates [that] they are baked articles composed of potato starch, corn starch, vegetable oil and food color. This information also claims, contrary to the protestant's statement, [that] the wafer products are not edible."


What is the proper classification under the HTSUSA of rose wafers?


The Explanatory Notes to the HTSUS provide an interpretation of the various provisions of the HTSUS at the international level.

Heading 1901 covers in part food preparations of starch. The Notes for heading 1901 state that such preparations may be liquid or in the form of powders, granules, doughs or other solid forms such as strips or discs, and are often used for making cakes. We take the foregoing to exclude baked decorative items such as the rose wafers at issue.

The Notes for heading 1905 state that the provision covers all bakers' wares, and divide the provision into two parts: (A) covering bread, pastry, cakes, biscuits and other bakers' wares; and part (B) covering communion wafers, empty pharmaceutical capsules, and sealing wafers.

Waffles and wafers which the Notes place in part (A) are described as light bakers's wares baked between patterned metal plates; they include thin waffle products, which may be rolled and contain a filling between the thin waffle pastry; cone-shaped waffles for ice cream as well as chocolate covered ones are mentioned.

In contrast, part (B) emphasizes that it covers a number of products made from flour or starch pastes, which are generally baked in the form of discs or sheets, and used for various purposes. Included in this section are not only the communion wafers and drug capsules but also sealing wafers, which are described as being cut out of thin sheets of baked, dried, and sometimes colored paste.

It is apparent from the product descriptions in the Explanatory Notes that subheading 1905.30 is intended to cover dessert type products. In contrast, it is understood that the wafers in issue are not intended to be eaten but to be used as decorations. Thus, it can not be concluded that subheading 1905.30.00 is an eo nomine provision for wafers but is limited to wafers which are to be eaten as bakers' confectionery products - a form of waffles. This conclusion is believed supported by the Notes description in part (B) of communion wafers as thin discs of very pure wheat paste that are cooked between iron plates. So that even though the communion wafer may be a type of wafer, it is not the same wafer that is identified with the waffle. Furthermore, it is interesting to note that the Explanatory Notes to the Combined Nomenclature of the European Communities lists communion wafers and sealing wafers in subheading 1905.90, rather than 1905.30. Therefore, it is quite clear that there was an intention to distinguish between the various types of wafers for classification purposes.


Rose wafers based on starches and vegetable oil and baked in a waffle-like press, and not intended to be eaten in and of themselves but to be used as cake decorations, are classifiable under the provision for other bakers' wares and similar products in subheading 1905.90.9090, HTSUSA. Goods entered under this subheading in 1990 were dutiable at the column one general rate of duty of 10 percent ad valorem.

Since the rate of duty for the independently arrived at classification is the same as the rate for the liquidated classification, you are instructed to deny the protest in full.

A copy of this decision should be attached to the Customs Form 19 to be returned to the protestant.


John Durant, Director

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