CLA-2 OT:RR:CTF:TCM H023498 RM
Mr. Brian Kavanaugh
Deringer Consulting Group
One Lincoln Bvd.
Rouses Point, NY
RE: Modification of New York Ruling Letter N015908, Classification of Crème Brûlées
Dear Mr. Kavanaugh:
This letter is in response to your request of February 7, 2008, for reconsideration of New York Ruling Letter (“NY”) N015908, dated September 5, 2007, issued to you on behalf of your client, Marie Morin Canada, regarding the classification of certain dessert products. On October 21, 2008, you advised that Marie Morin Canada was only seeking reconsideration of NY N015908 as it pertains to the classification of crème brûlées. In that ruling, U.S. Customs and Border Protection (“CBP”) classified, in relevant part, crème brûlées in heading 1901, Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for: “… [F]ood preparations of goods of heading 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.” We have reviewed NY N015908 and found it to be in error as it relates to crème brûlées.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. §1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed modification was published on January 15, 2009, in the Customs Bulletin, Volume 43, No. 4. No comments were received in response to this notice.
FACTS:
The Marie Morin brand crème brûlées are fully baked custards consisting of approximately 47 percent cream, 23 percent milk, 14 percent egg yolks, 12 percent sugar, 5 percent egg whites, and less than 1 percent vanilla. They are imported in a frozen condition, in single-serving glass ramekins containing 110 grams, 6 units per retail package. A 3 gram sugar pouch is placed inside every package. Serving instructions direct the consumer to thaw the product for 20 to 24 hours and then sprinkle and burn the brown sugar topping with a chef torch or by placing it in a conventional oven for 1 to 1 ½ minutes.
ISSUE:
Whether the crème brûlées are classified as a “cream” product in heading 1901, HTSUS, or as “bakers’ wares” in heading 1905, 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.
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:
1901.90 Other:
Other:
Dairy products described in additional U.S. note 1 to chapter 4:
Other:
1901.90.46 Described in additional U.S. note 10 to chapter 4 and entered pursuant to its provisions …
1901.90.47 Other ….
…
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:
1905.90 Other:
1905.90.90 Other …
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While not 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 ENs to heading 1901, HTSUS, state, in relevant part:
Apart from the preparations excluded by the General Explanatory Note to this Chapter, this heading also excludes:
* * * *
(e) Fully or partially cooked bakers’ wares, the latter requiring further cooking before consumption (heading 19.05).
The ENs to heading 1905, HTSUS, state, in relevant part:
This heading covers all bakers’ wares. The most common ingredients of such wares are cereal flours, leavens and salt but they may also contain other ingredients such as: gluten, starch, flour of leguminous vegetables, malt extract or milk, seeds such as poppy, caraway or anise, sugar, honey, eggs, fats, cheese, fruit, cocoa in any proportion, meat, fish, bakery “improvers”, etc. Bakery “improvers” serve mainly to facilitate the working of the dough, hasten fermentation, improve the characteristics and appearance of the products and give them better keeping qualities. The products of this heading may also be obtained from dough based on flour, meal or powder of potatoes.
This heading includes the following products:
* * * *
(11) Certain bakery products made without flour (e.g., meringues made of white of egg and sugar).
In accordance with the terms of heading 1901, HTSUS, we must first determine whether the HTSUS provides for the merchandise in any other heading.
You submit that the crème brûlées are classified as “bakers’ wares’” in heading 1905, HTSUS. CBP has previously construed the term “bakers’ wares” to mean “manufactured articles offered for sale by one [who] specializes in the making of breads, cakes, cookies, and pastries.” See HQ H015429, dated December 11, 2007. Most recently, in HQ W968393, dated July 16, 2008, we explained:
The text of heading 1905, HTSUS, provides for “other bakers’ wares” which, when read in the context of the entire clause of which this expression is a part, leads us to now find that the term “other bakers’ wares” refers to baked goods (or wares) other than the “bread, pastry, cakes, [and] biscuits” specified in the heading. In addition, based on the heading text and the examples provided by the ENs, it appears that goods of heading 1905, HTSUS, are consumed “as is” and are not incorporated into other food items. (Emphasis added).
Based upon our review of the attached marketing literature submitted with your request for reconsideration, we have concluded that the crème brûlées at issue are manufactured goods offered for sale by one who specializes in the making of pastries. They are akin to the bakery products made without flour (e.g., meringues made of white of egg and sugar) described in EN 19.05 (A)(11)). Moreover, as imported, they are fully baked and ready for consumption “as is”; they are not incorporated into other food items. Accordingly, we find that they constitute bakers’ wares and are classified in heading 1905, HTSUS.
Our conclusion is in keeping with our administrative precedent. See HQ H015429, dated December 11, 2007 (fully baked crème brûlées imported in a frozen condition classified in heading 1905, HTSUS).
HOLDING:
By application of GRI 1, the crème brûlées are classified in heading 1905, HTSUS, and provided for under subheading 1905.90.9090, HTSUS, as: “Bread, pastry, cakes, biscuits and other bakers’ wares, whether or not containing cocoa; …: Other: Other …Other.” The column one, general rate of duty is 4.5 percent 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/.
EFFECT ON OTHER RULINGS:
NY N015908, dated September 5, 2007, is hereby modified.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division