Tariff Classification of a Mixture of Cereals Prepared And Not Prepared By Swelling or Roasting; Reconsideration of NYRL 873226

HQ 952511 December 29, 1992 CLA-2 CO:R:C:F 952511 K CATEGORY: Classification Tariff No. 2008.92.9090; 1904.10.0000 Ms. Robbie Folino-Nazda Import Manager Expeditors International 990 Lone Oak Road Suite 162 Eagan, Minnesota 55121 RE: Tariff Classification of a Mixture of Cereals Prepared And Not Prepared By Swelling or Roasting; Reconsideration of NYRL 873226 Dear Ms. Folino-Nazda: In your letter of August 11, 1992, you requested a reconsideration of that part of New York Ruling Letter (NYRL) 873226, dated April 21, 1992, which held that merchandise described as Master Choice Tropical Fruit Muesli was classifiable in subheading 2008.92.9090, Harmonized Tariff of the United States (HTSUS). Our response follows which affirms the NYRL. FACTS: Master Choice Tropical Fruit Muesli is described as a mixture of oats, wheat flakes, corn flakes, raisins, whey powder, sugar, banana chips, pineapple, papaya, dates, coconut, vitamins and minerals packed in a plastic-lined paper pouch that is not airtight, in a cardboard box containing 12 ounces, net weight. The food product contains 18 percent of wheat flakes and 14 percent corn flakes that have been made crisp by swelling or roasting and 30 percent of oats that have not been prepared by swelling or roasting. ISSUE: The issue is whether food products are classifiable in subheading 1904.10.00, HTSUS, which are composed of cereals (32 percent) prepared by swelling or roasting that are mixed with cereals (30 percent) that have not been prepared by swelling or roasting. -2- LAW AND ANALYSIS: Subheading 1904.10.0000, HTSUS, provides for prepared foods obtained by the swelling or roasting of cereals or cereal products. The subheading does not provide for a mixture consisting of cereals that have and have not been prepared by swelling and roasting. The Explanatory Notes to the harmonized Commodity Description and Coding System (EN), a guideline for use in determining classification under HTSUS, states that "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." The EN further states that "salt, sugar, molasses, malt extract, fruit or cocoa powder [not more than 8 percent by weight], etc., may have been added during or after manufacture." The EN does not support the contention that the food product may contain cereals that have not been prepared by swelling and roasting. Accordingly, the classification of the mixture falls within the basket provision of subheading 2008.92.9090, HTSUS. HOLDING: Food products composed of cereals that has been prepared by swelling or roasting that are mixed with cereals that have not been prepared by swelling or roasting, with added sweeteners, fruit, and nuts, and packed in non-airtight containers, are classifiable in subheading 2008.92.9090 HTSUS, as fruits, nuts, and other edible parts of plants, otherwise prepared or preserved...other... mixtures...other...other, dutiable at 17.5 percent ad valorem. NYRL 873226, dated April 21, 1992, is affirmed. Sincerely, John Durant, Director Commercial Rulings Division