H307706

HQ H307706 January 10, 2020 OT:RR:CTF:FTM H307706 JER CATEGORY: Classification TARIFF NO.: 1904.10 Port Director U.S. Customs and Border Protection 40 South Gay Street, Room 120 Baltimore, MD 21202 RE: Internal Advice; Tariff Classification of Oatmeal Dear Port Director: This is in response to the internal advice request, initiated by the law firm of Harris, Wiltshire & Grannis, LLP, on behalf of their client, Cuisine Solutions, Inc. (“Inquirer”), and transmitted to our office on December 23, 2019, concerning the classification of a sous-vide prepared oatmeal product under the Harmonized Tariff Schedule of the United States (“HTSUS”). Our decision is set forth below. FACTS: The merchandise is described as being fully cooked steel-cut oatmeal in vacuum sealed pouches imported from France. It is otherwise known as sous-vide prepared oatmeal. The ingredients include water, cooked organic steel-cut oat groats and salt. The oatmeal is sold in single packs with forty four packs in each case. The Inquirer states that the production process of the oatmeal begins with raw materials (oat groats) which are stored and frozen in France. The product is unpacked, weighed and then pre-cooked in boiling water for fourteen (14) minutes. It is then cooled in tap water and cold stored. Next, the oatmeal is cooked sous-vide at 85°C for one hour and cooled. The sous-vide cooking technique means that the food product is “cooked under vacuum” wherein the food is vacuum sealed in airtight pouches and slow-cooked in water at a constant low temperature. The product remains in the vacuum sealed pouches, and is then frozen and shipped to the United States. Inquirer outlines the vacuum sealing/sous-vide cooking technique as follows: Cuisine Solutions conducts an air extraction process for its vacuum sealed products that results in the creation of an airless pouch. Thermoformers operate with a bottom forming film – into which the oatmeal is placed – and a top non-forming film. The air is extracted, a vacuum is created and the two films get sealed together. Thus, vacuum sealing results in an airtight packaging in which the oatmeal is slow-cooked and imported. ISSUE: Whether a sous-vide prepared oatmeal product is classified under subheading 1904.10, HTSUS, or under subheading 1904.20, HTSUS. LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). 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 2 through 6 may then be applied in order. Because the instant classification question occurs beyond the four-digit heading level, GRI 6 is implicated. GRI 6 states: For legal purposes, the classification of goods in the subheading of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires. The 2019 HTSUS provisions under consideration are as follows: 1904 Prepared foods obtained by the swelling or roasting of cereals or cereal products (for example, cornflakes); cereals (other than corn (maize)) in grain from or in the form of flakes or other worked grains (except flour, groats and meal), pre-cooked or otherwise prepared, not elsewhere specified or included: 1904.10 Prepared foods obtained by the swelling or roasting of cereals or cereal products… * * * * * 1904.10.80 Other… * * * * * 1904.20 Prepared foods obtained from unroasted cereal flakes or from mixtures of unroasted cereal flakes and roasted cereal flakes or swelled cereals: Vegetable saps and extracts: 1904.20.10 In airtight containers and not containing apricots, citrus fruits, peaches or pears… * * * * * * * * * * * * The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The EN for heading 1904, HTSUS, states, in pertinent part: Prepared foods obtained by the swelling or roasting of cereals or cereal products (for example corn flakes). This group covers a range of food preparations made from cereal grains (maize, wheat, rice, barley, etc.) which have been made crisp by swelling or roasting. They are mainly used, with or without milk, as breakfast foods. Salt, sugar, molasses, malt extract, fruit or cocoa may have been added during or after their manufacture. The group also includes similar foodstuffs obtained by swelling or roasting, from flour or bran. Corn flakes are made from grains of maize by removing the pericarp and the germ, adding sugar, salt and malt extract, softening with steam and then rolling into flakes and roasting in a rotary oven. The same process may be applied to wheat or other cereal grains. Prepared foods obtained from unroasted cereal flakes or from mixtures of unroasted cereal flakes and roasted cereal flakes or swelled cereals. This group includes prepared foods obtained from unroasted cereal flakes or from mixtures of unroasted cereal flakes and roasted cereal flakes or swelled cereals. These products (often called “Musli”) may contain dried fruit, nuts, sugar, honey, etc. They are generally put up as breakfast foods. The Explanatory Notes (I) and (II) to GRI 6 state, in pertinent part: (I) Rules 1 to 5 above govern, mutatis mutandis, classification at subheading levels within the same heading. (II) For the purposes of Rule 6, the following expressions have the meanings hereby assigned to them: (a) “subheadings at the same level”: one-dash subheadings (level 1) or two-dash subheadings (level 2). Thus, when considering the relative merits of two or more one-dash subheadings within a single heading in the context of Rule 3(a) [below], their specificity or kinship in relation to a given article is to be assessed solely on the basis of the texts of the competing one-dash subheadings. When the one-dash subheading that is most specific has been chosen and when that subheading is itself subdivided, then, and only then, shall the texts of the two-dash subheadings be taken into consideration for determining which two-dash subheading should be selected. * * * * * * * * * The Inquirer contends that the oatmeal product is properly classified under subheading 1904.10, HTSUS. Specifically, Inquirer asserts that the sous-vide manufacturing process of the oatmeal distinguishes it from other variations of oatmeal previously classified under subheading 1904.20, HTSUS. In support of its argument, Inquirer cites to Headquarters Ruling Letter (“HQ”) H272093, dated November 7, 2017, wherein CBP held that rice cakes which had been steamed cooked and stored were properly classified under subheading 1904.10, HTSUS, as prepared foods obtained by swelling. Inquirer further supports its argument by citing to New York Ruling Letter (“NY”) F82427, dated February 28, 2000, in which Inquirer claims, CBP distinguished cereals which were neither roasted nor swelled from those which were packaged in an airtight container. It is not disputed that the subject oatmeal product is classified under heading 1904, HTSUS, as it is indeed a prepared food which has been obtained by the swelling or roasting of cereals or cereal products. At issue is where amongst the competing 1904, HTSUS, subheadings, (1904.10, HTSUS, or 1904.20, HTSUS), i

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). 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 2 through 6 may then be applied in order.Because the instant classification question occurs beyond the four-digit heading level, GRI 6 is implicated. GRI 6 states: For legal purposes, the classification of goods in the subheading of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.The 2019 HTSUS provisions under consideration are as follows:1904 Prepared foods obtained by the swelling or roasting of cereals or cereal products (for example, cornflakes); cereals (other than corn (maize)) in grain from or in the form of flakes or other worked grains (except flour, groats and meal), pre-cooked or otherwise prepared, not elsewhere specified or included: 1904.10 Prepared foods obtained by the swelling or roasting of cereals or cereal products… * * * * *1904.10.80 Other…* * * * * 1904.20 Prepared foods obtained from unroasted cereal flakes or from mixtures of unroasted cereal flakes and roasted cereal flakes or swelled cereals: Vegetable saps and extracts:1904.20.10 In airtight containers and not containing apricots, citrus fruits, peaches or pears…* * * * * * * * * * * *The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level