CLA-2 OT:RR:CTF:TCM H269056 PJG
Ms. Alessandra Grasso
Forni & Fattorie USA, LLC
1275 Valley Brook Avenue
Lyndhurst, New Jersey 07071
RE: Revocation of NY J89472; tariff classification of focaccia from Italy
Dear Ms. Grasso:
On October 14, 2003, U.S. Customs and Border Protection (“CBP”) issued to you New York Ruling Letter (“NY”) J89472. The ruling pertains to the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of focaccia from Italy. We have since reviewed NY J89472 and determined it to be in error. Accordingly, NY J89472 is revoked.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on September 21, 2016, in Volume 50, Number 38, of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
In NY J89472, the focaccia was described as follows:
Primoforno brand focaccia consists of a fully-baked, circular or rectangular-shaped flat bread base topped with vegetables. The focaccia will be imported frozen, packed in plastic film bags containing from 110 to 500 grams, net weight.
In NY J89472, CBP classified the focaccia under subheading 1905.90.9090, HTSUSA, which provides for “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: Other: Other.”
ISSUE:
Whether the subject focaccia topped with vegetables is classifiable as a bread of subheading 1905.90.10, HTSUS, or in subheading 1905.90.90, HTSUS, as an other product.
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) is made in accordance with the General Rules of Interpretation (“GRI”). 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 may then be applied.
The 2016 HTSUS provisions under consideration are as follows:
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:
1905.90.10 Bread, pastry, cakes, biscuits and similar baked products, and puddings, whether or not containing chocolate, fruit, nuts or confectionary
Frozen:
* * *
1905.90.1049 Other
1905.90.90 Other
* * *
1905.90.9090 Other
The Harmonized Commodity Description and Coding System Explanatory Notes
(“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither 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 EN to 19.05 states, in pertinent part:
(A) Bread, pastry, cakes, biscuits and other bakers’ wares, whether or not containing cocoa.
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 a dough based on flour, meal or powder of potatoes.
The classification dispute at the eight-digit level is whether focaccia bread that is topped with vegetables is classified as a bread of subheading 1905.90.10, HTSUS.
The Oxford English Dictionary defines “focaccia” as “[a] type of flat Italian bread made with yeast sprinkled with olive oil and salt, and frequently flavoured with herbs, onions, etc.” "focaccia, n.". OED Online. June 2016. Oxford University Press. http://www.oed.com/view/Entry/249434?redirectedFrom=focaccia (accessed August 16, 2016).
Moreover, in accordance with EN 19.05(A), goods of heading 1905, HTSUS, may contain other ingredients. Accordingly, we find that the subject merchandise, which is a frozen bread topped with vegetables, is described by subheading 1905.90.1049, HTSUSA, which provides for “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: Other: Bread, pastry, cakes, biscuits and similar baked products, and puddings, whether or not containing chocolate, fruit, nuts or confectionary: Frozen: Other.”
HOLDING:
Under the authority of GRIs 1 and 6 the focaccia topped with vegetables is classified in heading 1905, HTSUS, specifically in subheading 1905.90.1049, HTSUSA, as “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: Other: Bread, pastry, cakes, biscuits and similar baked products, and puddings, whether or not containing chocolate, fruit, nuts or confectionary: Frozen: Other.” The 2016 column one, general rate of duty is Free.
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.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY J89472, dated October 14, 2003, is REVOKED.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division