CLA-2: OT:RR:CTF:TCM H226175 ASM
Mr. Roland L. Schinbeckler
General Manager
Specialities Agro Alimentation, Inc.
P.O. Box 409
Millington, NJ 07946
RE: Classification of French Crème Brûlées
Dear Mr. Schinbeckler:
This is in response to your Electronic Ruling Request dated June 7, 2012, made on behalf of Specialities Agro, Alimentation, Inc., regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a cream-based product identified as crème brûlée. Your request was referred to this office by the National Commodity Specialist Division, Customs and Border Protection (CBP) for reply.
FACTS:
This ruling request concerns the classification of a product identified as French crème brûlée. The products are frozen crème brûlées, sweet, pre-baked desserts comprised of cream, fresh egg yolk, sugar, fresh egg white, and natural vanilla flavoring. The cream is pasteurized and then the ingredients are placed in a tank for mixing and homogenization. The liquid mixture is placed in heat tolerant ramekins that are approximately 35.4 mm high, 66 mm diameter (bottom), and 78 mm diameter (top). Each glass pot holds approximately 96g of product. The product is then baked in the individual ramekins, packaged, and frozen. Each serving contains a separate packet of topping which consists of caramel flakes. The topping can be browned with a chef torch or by placing it in a conventional oven for several minutes. The product is imported in a frozen condition, ready to eat, directly from the ramekins.
ISSUE:
What is the proper classification of the merchandise under the 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 following HTSUS provision is 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:
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:
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).
In classifying the subject product, we cite to CBP Headquarters Ruling Letter (HQ) H023498, dated March 9, 2009, which is directly on point. HQ H023498 classified a baked crème brûlée, as “bakers’ ware” of subheading 1905.90.9090, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The crème brûlées consisted of 47 percent cream, 23 percent milk, 14 percent egg yolks, 12 percent sugar, 5 percent egg whites, and less than 1 percent vanilla and were imported in single-serving glass ramekins in a frozen condition with a sugar pouch placed inside every package to be applied as topping.
HQ H023498 held that the product was not classified as an “Other” food preparation of subheading 1901.90, 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, is fully baked and ready for consumption “as is”, i.e., they are not incorporated into other food items. Finally, CBP determined that the classification of crème brûlée as “bakers’ ware” of heading 1905, HTSUS, was consistent with administrative precedent because an earlier ruling, HQ H015429, dated December 11, 2007, classified a similar fully baked crème brûlée in heading 1905, HTSUS.
We begin by noting that the product now at issue contains almost identical ingredients to those listed in HQ H023498, i.e., cream, egg yolk, sugar, egg white, and natural vanilla flavoring. Moreover, like the crème brûlée in that ruling, the subject product has been baked in an oven. Furthermore, we note that the Importer, Specialities Agro-Alimentation, Inc. and the manufacturer, both specialize in the sale and manufacture of pastries as well as other products. We further note that the product is similar to other bakery products made without flour and ready for consumption by the consumer in an “as is” condition.
Inasmuch as the subject crème brûlées have substantially similar ingredients and have met all the criteria set forth in the aforementioned precedential rulings, we find that the crème brûlée is properly classified consistent with those rulings as “bakers’ ware” in heading 1905, HTSUS.
HOLDING:
The subject merchandise, identified as a French Crème Brûlée, is correctly classified in 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: 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.
Sincerely,
Ieva K. O’Rourke, Chief
Tariff Classification and Marking Branch