HQ 967900

February 27, 2006

CLA-2 RR:CTF:TCM 967900ptl

CATEGORY: Classification

TARIFF NO.: 2008.19.9090

Ms. Andrea Miller

Costco Wholesale

999 Lake Drive

Issaquah, WA 98027

RE: Microwave Buttered Popcorn; Revocation of NY H83710

Dear Ms. Miller:

On July 16, 2001, the Customs and Border Protection (CBP) National
Commodity Specialist Division, in New York, issued New York Ruling
Letter (NY) H83710 to you classifying "Act II" brand microwave buttered
popcorn under the Harmonized Tariff Schedule of the United States
(HTSUS), in subheading 1005.90.4040, HTSUS, which provides for corn
(maize), other, other, popcorn. CBP has had occasion to review that
ruling and, for the reasons stated below, has determined that it is in
error. This letter revokes NY H83710 and provides the correct
classification for microwave buttered popcorn.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C.
1625(c)(1)), as amended by Title VI, a notice was published in the
January 4, 2006, CUSTOMS BULLETIN, Volume 40, Number 2, proposing to
modify NY H83710, and to revoke any treatment accorded to substantially
identical transactions. One comment was received in response to the
notice. Points raised in that comment are discussed below.

**FACTS:**

The "Act II" brand popcorn products under consideration in NY H83710 are
available in three flavors. "Butter" popcorn contains popcorn (maize),
partially hydrogenated vegetable oil, salt, natural flavoring, and
achiote (coloring). "Extra butter" popcorn contains popcorn (maize),
partially hydrogenated vegetable oil, salt, natural and artificial
flavoring, and achiote. "Natural" popcorn contains popcorn (maize),
partially hydrogenated vegetable oil, and salt. The flavorings and
seasonings are packaged together with the popcorn in individual 99 gram
packages that are designed to be heated in a microwave. The individual
packages will be sold in boxes containing 28 packages.

**ISSUE:**

Whether individual packages of popcorn mixed with other ingredients for
use in microwave ovens are preparations for purposes of heading 2008?

**LAW AND ANALYSIS:**

Merchandise is classifiable under the HTSUS in accordance with the
General Rules of Interpretation (GRIs). The systematic detail of the
HTSUS is such that most goods are classified by application of GRI 1,
that is, 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 may then be
applied in order.

In understanding the language of the HTSUS, the Harmonized Commodity
Description and Coding System Explanatory Notes may be utilized. The
Explanatory Notes (ENs), although not dispositive or legally binding,
provide a commentary on the scope of each heading of the HTSUS, and are
the official interpretation of the Harmonized System at the
international level. [See]{.underline} T.D. 89-80, 54 Fed. Reg. 35127,
35128 (August 23, 1989).

The HTSUS subheadings under consideration are as follows:

**1005** Corn (maize):

> \* \* \*

90. Other:

> \* \* \*

40. Other

1005.90.4040 Popcorn

**2008** Fruit, nuts and other edible parts of plants, otherwise
prepared or preserved, whether or not containing added sugar or other
sweetening matter or spirit, not elsewhere specified or included:

> Nuts, peanuts (ground-nuts) and other seeds, whether or not mixed
> together:

\* \* \*

2008.19 Other, including mixtures:

\* \* \*

Other, including mixtures:

2008.90.90 Other

2008.19.9090 Other

As imported, the packages of microwave popcorn consist of kernels of
corn (maize) that have been mixed with specific proportions of partially
hydrogenated vegetable oil, salt, natural or artificial flavoring, and,
in some, achiote (coloring). These packages are marketed to consumers
who will purchase and use the products as offered, without any further
preparation on their part other than cooking in the microwave.

According to Note 1 (b) to Chapter 10, grains which have been hulled or
otherwise worked are excluded from Chapter 10. Additionally, the General
Explanatory Notes to Chapter 10 provide, in relevant part, that "This
Chapter covers cereal grains only, ...." Since the popcorn at issue has
been prepared by being mixed with partially hydrogenated vegetable oil,
salt, and other ingredients, they are excluded from Chapter 10 and they
should not be classified in subheading 1005.90.4040, HTSUS.

It is CBP's opinion that the specific ingredient composition of these
products has advanced the popcorn from being mixtures of popcorn kernels
and other ingredients to products that are preparations consisting of
popcorn kernels with specific additional ingredients which are designed
to impart a specific taste or flavor to the finished product.

CBP received a comment in response to the Notice of Proposed Revocation
published in the [Customs Bulletin]{.underline} which argues for the
correctness of the original ruling. The commenter asserts that the
products have been put up for the convenience of the consumer. He argues
that the products should be classified by virtue of the essential
character of the product, which, it is claimed to be imparted by the
popcorn kernels. The commenter claims that the popcorn kernels have not
been "prepared or preserved" but have simply "been packed with other
ingredients."

In support of this position, the commenter refers to several CBP
rulings. However, the cited rulings do not support his position. One
ruling, NY H88884, dated March 6, 2002, classified tuna products packed
with marinade in pouches. The commenter correctly points out that the
product was classified in "the HTS Heading 1604 provisions covering
fish." Chapter 16 covers prepared foodstuffs. The fish that has not been
prepared is classified in chapter 3.

Similarly, other rulings cited cover pasta or noodles packaged with
either a cheese sauce mix (NY K81125, dated November 19, 2003), tomato
sauce and cheese (NY I84166, dated August 2, 2002), or a sauce
preparation (NY G81337, dated September 13, 2000). In all these rulings,
the products constituted "sets" in which the ingredients were packaged
for use together, but were not mixed together as are the subject popcorn
kernels and the oil, salt and flavorings inside the microwave package.
In HQ 950891, dated March 26, 1992, CBP conducted a similar analysis
classifying three varieties of rice soup meals as sets. Each variety
consisted of three separate packets of rice, soup stock, and either an
eel, mushroom or bamboo shoot packet. CBP held that the products were
sets consisting of separate items put up together to meet a particular
need, with the rice component imparting the essential character. Here,
again, the ingredients were not mixed at importation, but were mixed by
the consumer during final preparation.

For instances where CBP has ruled that, because of the mixing of
ingredients and seasonings, a preparation has been created for tariff
purposes, see HQ 953651, dated June 16, 1993, concerning jambalaya and
curry preparations consisting of rice, spices and vegetables. Also, NY
L80537, dated November 8, 2004, concerning mixtures of dry ingredients
for soup packaged together in sealed pouches, and NY D80053, dated
August 10, 1998, a dry lentil soup mix. Both of these rulings classified
the products in chapter 21 as preparations, in spite of the fact that
each "soup" contained a specific, identifiable ingredient that
characterized that particular soup.

A further rationale supporting CBP's classification of packages of
microwave popcorn as a preparation can be found in the opinions of the
Court of International Trade and the U.S. Court of Appeals for the
Federal Circuit. See *Orlando Food Corp. v. United States*, 21 Ct. Int'l
Trade 187 (1997); aff'd 140 F.3d 1437 (Fed. Cir. 1998). In Orlando
Foods, the addition of salt, citric acid and a basil leaf caused canned
tomato products to be classified as goods that have the character of
preparations for sauces, rather than tomatoes. In the instant situation,
the addition of oil, salt and flavorings to the popcorn kernels has
changed the character of the product to one that is more than kernels of
popcorn. Also, the added ingredients distinguish the different styles
from each other.

In the microwave popcorn, the popcorn kernels have been prepared for use
by the consumer by having been combined and packaged with oil, salt and
flavorings. Even if the kernels were to be removed before being popped,
which is not how they are intended to be used, they would retain some of
the oil, salt and flavorings. The instant popcorn kernels in the
microwave packages are not the same popcorn kernels found in jars or
plastic bags of popcorn.

Based on this analysis, we disagree with the commenter's proposition and
conclude that the microwave popcorn packages are preparations provided
for in heading 2008, HTSUS, which provides for "fruit, nuts and other
edible parts of plants, otherwise prepared or preserved, whether or not
containing added sugar or other sweetening matter or spirit, not
elsewhere specified or included."

**HOLDING:**

Microwave popcorn packages consisting of popcorn (maize), partially
hydrogenated vegetable oil, natural and/or artificial flavor and,
possibly, coloring, and salt, and designed for use with microwave ovens
are classified in subheading 2008.19.9090, HTSUS, which provides for
"Fruit, nuts and other edible parts of plants, otherwise prepared or
preserved, whether or not containing added sugar or other sweetening
matter or spirit, not elsewhere specified or included: Nuts, peanuts
(ground-nuts) and other seeds, whether or not mixed together: Other,
including mixtures: Other, including mixtures: Other, Other." The 2006
duty rate is 17.9% *ad valorem*.

Duty rates are provided for your convenience and are subject to change.
The text of the most recent HTSUS and the accompanying duty rates are
provided on the World Wide Web at www.usitc.gov.

NY H83710, dated July 16, 2001, is revoked.

In accordance with 19 U.S.C. 1625(c), this ruling will become effective

60 days after publication in the CUSTOMS BULLETIN.

Sincerely,

Myles B. Harmon, Director

Commercial and Trade Facilitation Division