CLA-2 OT:RR:CTF:TCM H015429 IDL
TARIFF NOS.: 1905.90.9090
Harvey Fox, Esq.
Adduci, Mastriani & Schaumberg, L.L.P.
1200 Seventeenth Street, N.W.
Fifth Floor
Washington, DC 20036
Re: Classification of Crème Brulees
Dear Mr. Fox:
This is in response to your request for a ruling on behalf of your client, Prolainat SAS, dated July 9, 2007. You requested a binding ruling on the classification of a fully baked, frozen crème brulee dessert product under the Harmonized Tariff Schedule of the United States (HTSUS). Our ruling on this matter is set forth below.
FACTS:
The “Authentic French Crème Brulees” (“dessert”) are fully baked in France before importation into the United States. The dessert consists of a baked and caramelized vanilla cream in a ceramic dish. Prolainat produces the product for export to the United States, with two variations in ingredients, as follows:
Ingredients, in order of contents by weight: cream (over 10% by weight of milk solids), water, sugar, rehydrated skimmed milk, egg yolk, lactose and milk proteins, rice starch, xanthan gum (thickener), carrageenan (gelling agent), natural vanilla extract, and exhausted vanilla seeds.
Ingredients, in order of contents by weight: cream (over 10% by weight of milk solids), water, egg yolk, sugar, rehydrated skimmed milk, lactose and milk proteins, xanthan gum (thickener), carrageenan (gelling agent), natural vanilla extract, and exhausted vanilla seeds.
The fully-baked ingredients, after being poured into ceramic dishes, are subjected to a caramelizing process, and frozen. The ingredients in the ceramic dishes are then packaged, two per box, with two packets of brown sugar. The packages are to be sold to the customer in the two variations indicated above, in frozen form.
The serving instructions vary depending on the method the consumer chooses to caramelize the brown sugar (i.e., broiler or torch) on top of the ingredients in the ceramic dish.
ISSUE:
Whether the dessert is classified as a “cream” product in heading 1901, HTSUS, or as “bakers’ wares” in heading 1905, HTSUS?
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 2 through 6 may then be applied in order. GRI 6 provides that “for legal purposes”, 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. GRI 6 thus incorporates GRIs 1 through 5 in classifying goods at the subheading level.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. The 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 T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
1901 …[F]ood preparations of goods of headings 0401 to 0404,
not containing cocoa or containing less than 5 percent by
weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included:
…
1905 Bread, pastry, cakes, biscuits and other bakers’ wares,
whether or not containing cocoa; communion wafers, empty
capsules of a kind suitable for pharmaceutical use, sealing
wafers, rice paper and similar products:
…
The Food Lover’s Companion, a culinary reference source, defines “crème brulee” as “a chilled, stirred custard that, just before serving, is sprinkled with brown or granulated sugar. The sugar topping is quickly caramelized under a broiler or with a salamander. Custards require slow cooking and gentle heat in order to prevent separation.” (See www.epicurious.com, which cites from the Food Lover’s Companion).
The Food Lover’s Companion defines “custard” as a “pudding-like dessert (made with a sweetened mixture of milk and eggs) that can either be baked or stirred on stovetop.” The Glossary for the Food Industries (Wilbur Gould, CTI Publications, 2nd edition, 1995), at page 56, defines “custard” as “a cooked or baked sweetened mixture of milk and eggs.” Similarly, the Glossary of Milling and Baking Terms (Samuel Manz, Pan-Tech International Publications, McAllen, Texas, 1993), at page 30, describes “custard” as “a sweetened mixture of eggs and milk that has been cooked over hot water.”
The dessert is a cream-based product. Heading 0401, HTSUS, provides for “milk and cream, not concentrated nor containing added sugar or other sweetening matter”. However, General EN to Chapter 4, as set forth in the following provision, in pertinent part, excludes the dairy-based dessert from classification under that chapter:
The Chapter also excludes, inter alia, the following:
(a) Food preparations based on dairy products (in particular, heading
19.01)….
EN 19.01 (EN 19.01, IV-1901-3) provides that “[t]he preparations of this heading may be distinguished from the products of headings 04.01 to 04.04 in that they contain, in addition to natural milk constituents, other ingredients not permitted in the products of those earlier headings.” Accordingly, although the dessert is cream-based, it is a food preparation that is excluded from Chapter 4, HTSUS.
Further, heading 1901, HTSUS, provides for “food preparations of goods of headings 0401 to 0404…not elsewhere specified or included”. [Emphasis added] Therefore, before considering heading 1901, HTSUS, as an appropriate heading, we must first determine whether the HTSUS provides for the dessert in any other heading.
Counsel argues that the baked dessert should be classified as a “bakers’ ware” in heading 1905. The term “bakers’ wares” is not defined in the HTSUS or ENs. As such, we presume the correct meaning to be the same as its common meaning understood in trade and commerce. See, Schulstad USA, Inc., v. United States, 26 C.I.T. 1347, 240 F. Supp. 2d 1335, 1351 (2002). Since the dictionary does not define the compound term “bakers’ wares”, we examine the definition of each word individually. The term “baker” is defined as “one that specializes in the making of breads, cakes, cookies, and pastries”. The term “wares” is defined as “manufactured articles…offered for sale”. See, Webster’s Third New International Dictionary (Unabridged) (1961). Accordingly, “bakers’ wares” can be understood to mean “manufactured articles offered for sale by one that specializes in the making of breads, cakes, cookies, and pastries”, such as those articles commonly sold in a bakery. Counsel has submitted evidence demonstrating that crème brulee is a common bakery product.
Further, citing Schulstad, which addressed the baking status of pastries as relevant in determining whether such goods could be classified in heading 1905, HTSUS, counsel argues that the baked dessert should be classified in heading 1905, HTSUS. Counsel also cites EN 19.05(A)(11), which provides for “Certain bakery products made without flour (e.g., meringues made of white of egg and sugar)”, and argues that the baked dessert is similar to meringue on the basis that they are both crustless and flourless.
We agree. We find that crème brulee is commonly sold in bakeries alongside breads, cakes, cookies, and pastries, and as such, is considered a bakery product. In addition, we find that “baking pans” designed for preparing crème brulee are commercially available. Further, as discussed above, crème brulee is a cream-based product, which can be baked or cooked on a stovetop. The baked crème brulees at issue are distinguishable from cooked crème brulees for classification purposes. See, Schulstad. Finally, the provisions of EN 19.05(A)(11) suggest that the dessert, as a baked, flourless bakery product, is classified in 1905, HTSUS. As such, we find that the dessert at issue is a “bakers’ ware” falling under the provisions of 1905, HTSUS, and precluded from classification in heading 1901, HTSUS, as discussed above.
Accordingly, the dessert is classified in heading 1905, HTSUS, and provided for under subheading 1905.90.9090, HTSUSA.
HOLDING:
By application of GRI 1, the “Authentic French Crème Brulees” are classified in heading 1905, HTSUS, and provided for under subheading 1905.90.9090, HTSUSA, as: “Bread, pastry, cakes, biscuits and other bakers’ wares, whether or not containing cocoa…: Other: … Other… Other”. The column one, general rate of duty under subheading 1905.90.9090, HTSUSA, is 4.5%, 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 Internet at www.usits.gov/tata/hts/.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch