HQ 952511: Tariff Classification of a Mixture of Cereals Prepared And Not Prepared By Swelling or Roasting; Reconsideration of NYRL 873226

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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