CLA-2 OT:RR:CTF:TCM H233583 AS
Mr. Brian Kavanaugh
Deringer Logistics Consulting Group
1 Lincoln Blvd., Suite 225
Rouses Point, NY 12979
RE: Revocation of NY N015908; Modification of NY N015868; Tariff Classification of
Crème Desserts
Dear Mr. Kavanaugh:
This is in response to your request for reconsideration dated September 12, 2012, filed on behalf of Marie Morin Canada, Inc., (“Marie”), requesting the reconsideration of New York Ruling Letter (NY) N015908, dated September 5, 2007.
In NY N015908, dated September 5, 2007, CBP classified crème desserts, identified as “Crème Coffee” and “Crème au Caramel”. The “Crème Coffee” product was classified in heading 1901, HTSUS, and subheading 1901.90.4200, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for “Malt extract; food preparations of flour, groats, meal, starch or malt extract, not containing cocoa or containing less than 40 percent by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included; food 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: Other: Other: Dairy products described in additional U.S. note 1 to chapter 4: Dairy preparations containing over 10 percent by weight of milk solids: Described in additional U.S. note 10 to chapter 4 and entered pursuant to its provisions”.
The “Crème au Caramel” product was classified in heading 1901, HTSUS, and subheading 1901.90.4600, HTSUSA, which provides for “Malt extract; food preparations of flour, groats, meal, starch or malt extract, not containing cocoa or containing less than 40 percent by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included; food 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: Other: Other: Dairy products described in additional U.S. note 1 to chapter 4: Other: Described in additional U.S. note 10 to chapter 4 and entered pursuant to its provisions”.
In addition, in NY N015868, dated September 7, 2007, one of two dessert products, “Crème au Chocolat”, was also classified in heading 1901, HTSUS, and subheading 1901.90.4600, HTSUSA.
We have reviewed NY N015908 and NY N015868 and found the classification of certain crème desserts to be incorrect. For the reasons set forth below, we hereby revoke NY N015908 and modify NY N015868.
Pursuant to section 625(c)(1), the Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke NY N015908 and modify NY N015868 was published in the Customs Bulletin, Vol. 49, No. 25, on June 24, 2015. No comments were received in response to this notice.
FACTS:
In NY N015908, CBP described the Crème Coffee and Crème au Caramel as fully cooked custard desserts, imported in frozen condition, in single-serving glass ramekins containing 110-grams, six units in a retail package. The Crème Coffee dessert is said to be composed of approximately 46 percent cream, 23 percent milk, 14 percent egg yolks, 12 percent sugar, 4 percent egg whites, and one percent coffee flavor. The Crème au Caramel consists of approximately 60 percent milk, 18 percent eggs, 12 percent sugar, 10 percent caramel, and one percent vanilla.
In N015868, CBP described the Crème au Chocolat as a chocolate custard consisting of 64.1 percent milk, 19.2 percent whole eggs, 12.8 percent sugar, and 3.8 percent cocoa powder. It is a ready to eat dessert imported in a frozen condition, individually packed for retail sale in small glass ramekins containing 110 grams, 6 ramekins to a carton.
ISSUE:
Whether the crème dessert products are classified in heading 1901, HTSUS, as an “other” food preparation, or in heading 1905, HTSUS, as “bakers’ wares”?
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 following HTSUS provisions are under consideration:
1901 Malt extract; food preparations of flour, groats, meal, starch or
malt extract, not containing cocoa or containing less than 40
percent by weight of cocoa calculated on a totally defatted basis,
not elsewhere specified or included; food 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 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:
(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 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).
You assert that the Crème Coffee and Crème au Caramel dessert products are classified as “bakers’ wares” in heading 1905, HTSUS, because these are fully cooked desserts which are prepared by one who specializes in the making of baked goods. Furthermore, you note that EN 19.05(A)(11) suggests that these desserts, as baked flourless baker products, are classified in heading 1905, HTSUS, and are thus precluded from classification in heading 1901, HTSUS.
In accordance with the terms of heading 1901, HTSUS, we must first determine whether the HTSUS provides for the merchandise in any other heading.
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).
In HQ H023498, dated March 9, 2009, CBP held that a Crème Brûlée dessert product was classified as “bakers’ wares” of heading 1905, HTSUS. In making this determination, CBP considered the fact that the product was a manufactured good offered for sale by one who specializes in the making of pastries. It was also noted that the Crème Brûlée product was akin to bakery products made without flour (e.g., meringues made of egg white and sugar) described in EN 19.05 (a)(11). Moreover, CBP noted that the product, as imported, was fully baked and ready for consumption “as is”, that is, they are not incorporated into other food items. See also HQ H015429, dated December 11, 2007, fully baked crème brûlée classified in heading 1905, HTSUS; HQ H226175, dated October 10, 2012, pre-baked French crème brulee classified in heading 1905, HTSUS.
Like the Crème Brûlée of HQ H023498, the Crème Coffee, Crème au Caramel, and Crème au Chocolat dessert products at issue are bakery products made without flour. They 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”; that is, they are not incorporated into other food items. Accordingly, we find that the Crème Coffee, Crème au Caramel, and Crème au Chocolat dessert products are “bakers’ wares” and are classified in heading 1905, HTSUS. This decision is consistent with CBP precedent. See HQ H023498; HQ H015429; and HQ H226175.
HOLDING:
By application of GRIs 1 and 6, the Crème Coffee, Crème Caramel, and Crème au Chocolat dessert products are classified in heading 1905, HTSUS, specifically, subheading 1905.90.90, HTSUS, 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: Other”. The general column one duty rate 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 World Wide Web at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N015908, dated September 5, 2007, is REVOKED and NY N015868, dated September 7, 2007 is MODIFIED.
In accordance with 19 U.S.C. §1625(c), this action will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division