CLA-2 OT:RR:CTF:TCM H158455 EGJ
Adrienne Clift
Ready Bake Foods
2095 Meadowvale Blvd.
Mississauga, Ontario L5N 5N1, Canada
RE: Revocation of NY N150096: Classification of Cinnamon Sweet Rolls
Dear Ms. Clift:
In a letter dated February 24, 2011, you requested a ruling on the tariff classification of a frozen, unbaked cinnamon sweet roll under the Harmonized Tariff Schedule of the United States (HTSUS). In New York Ruling Letter (NY) N150096, dated March 9, 2011, U.S. Customs and Border Protection (CBP) responded to your request and classified the subject merchandise under subheading 1901.90.90, HTSUS, which provides for other food preparations of flour.
In a letter dated March 18, 2011, you provided additional information regarding the cinnamon roll and asked CBP to revoke NY N150096. We have reviewed NY N150096 and the additional information that you provided, and we have found the ruling to be in error. For the reasons set forth below, we hereby revoke NY N150096.
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, notice proposing to revoke NY N150096 was published on April 30, 2014, in Volume 48, Number 17, of the Customs Bulletin. One comment was received in support of the notice.
FACTS:
In NY N150096, CBP described the cinnamon roll (sku number 10240) as “an unbaked roll-shaped pastry with a cinnamon filling. The pastry is composed of flour, water, yeast, sugar, sweet dough concentrate, shortening, cinnamon filling, margarine, flavor and cinnamon, and weighs 2.5 oz. (71 g.), net weight. The total sugar content is less than 10 percent, by dry weight. The frozen products will be imported in a cardboard box holding 16.9 lbs., net weight, and sold to retail stores who need to proof and bake the products before selling to the public.”
In the original ruling request, you stated that the cinnamon roll contains less than ten percent of sugar by dry weight. In your request for reconsideration, you included the dry weight of ingredients in the cinnamon mix included in the roll. This information was not included in the original request. Based on the additional information, the dry weight of sugar in the cinnamon mix plus the dry weight of sugar in the roll is greater than ten percent of the total dry weight of the cinnamon roll.
ISSUE:
Is the cinnamon roll classified in subheading 1901.90.56, HTSUS, as a food preparation of flour containing over 10 percent by dry weight of sugar, or in subheading 1901.90.90, HTSUS, as other types of food preparations of flour?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI's). 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. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs 1 through 5.
The HTSUS provisions at issue are as follows:
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:
1901.90 Other:
Other:
Other:
Other:
Articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17:
1901.90.56 Described in additional U.S. note 8 to chapter 17 and entered pursuant to its provisions …
* * *
1901.90.58 Other …
* * *
Other:
1901.90.90 Other …
* * *
Additional U.S. Note 3 to Chapter 17 provides, in pertinent part, as follows:
For the purposes of this schedule, the term "articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17" means articles containing over 10 percent by dry weight of sugars derived from sugar cane or sugar beets, whether or not mixed with other ingredients …
Additional U.S. Note 8 to Chapter 17 provides as follows:
The aggregate quantity of articles containing over 10 percent by dry weight of sugars described in additional U.S. note 3 to chapter 17, entered under subheadings 1701.91.54, 1704.90.74, 1806.20.75, 1806.20.95, 1806.90.55, 1901.90.56, 2101.12.54, 2101.20.54, 2106.90.78 and 2106.90.95 during the 12-month period from October 1 in any year to the following September 30, inclusive, shall not exceed 64,709 metric tons (articles the product of Mexico shall not be permitted or included under this quantitative limitation and no such articles shall be classifiable therein).
* * *
Applying GRI 1, it is undisputed that frozen, unbaked pastries are classified in heading 1901, HTSUS, as food preparations of flour. Indeed, in Schulstad USA, Inc. v. United States, 26 C.I.T. 1347, 1355 (2002), the Court of International Trade found that frozen, unbaked Danish pastries “cannot be classified with baked articles if not in fact baked before freezing ... this means that plaintiff's entered frozen mass of fully prepared pastry ingredients does land in the food ‘basket’ provision of HTSUS heading 1901.” As such, the frozen, unbaked cinnamon roll is classified in heading 1901, HTSUS.
In NY N150096, CBP classified the cinnamon roll in subheading 1901.90.90, HTSUS, because CBP calculated that the sugar content was less than ten percent of the cinnamon roll’s dry weight. However, based upon additional information in the reconsideration request, CBP calculates that the sugar constitutes more than ten percent of the cinnamon roll’s dry weight. As such, the cinnamon rolls are classified in subheading 1901.90.56, HTSUS, which provides for food preparations of flour containing over ten percent by dry weight of sugar when the sugar is derived from sugar cane or sugar beets.
Additional U.S. Note 8 to Chapter 17 sets forth a quota which limits importations of goods classified under subheading 1901.90.56, HTSUS. If the cinnamon rolls are imported in quantities that fall under the limit set forth in additional U.S. Note 8 to Chapter 17, they shall remain classified in subheading 1901.90.56, HTSUS. However, if the quantitative limits of additional U.S. Note 8 to Chapter 17, HTSUS, have been reached, the subject cinnamon rolls will be classified in subheading 1901.90.58, HTSUS. We note that merchandise that is a product of Mexico is not subject to this quota; thus, if it were determined that the subject cinnamon rolls were products of Mexico, they would not be subject to this quota.
HOLDING:
If imported in quantities that fall within the limits described in additional U.S. Note 8 to Chapter 17, the cinnamon rolls will be classified in subheading 1901.90.56, HTSUS, which provides, in pertinent part, for “[F]ood preparations of flour, groats, meal, starch or malt extract, not containing cocoa or containing less than 40 percent by weight of cocoa …not elsewhere specified or included: Other: Other: Other: Other: Articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17: Described in additional U.S. note 8 to chapter 17 and entered pursuant to its provisions.” The 2014 column one, general rate of duty is 10% ad valorem.
If the quantitative limits of Additional U.S. Note 8 to Chapter 17, HTSUS, have been reached, the cinnamon rolls will be classified in subheading 1901.90.58, HTSUS, which provides, in pertinent part, for: “[F]ood preparations of flour, groats, meal, starch or malt extract, not containing cocoa or containing less than 40 percent by weight of cocoa …not elsewhere specified or included: Other: Other: Other: Other: Articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17: Other.” The 2014 column one, general rate of duty is 23.7 cents per kilogram plus 8.5% ad valorem. Furthermore, if classified in subheading 1901.90.58, HTSUS, the cinnamon rolls will also be subject to the additional duty rates specified in subheadings 9904.17.49 - 9904.17.65, HTSUS, as applicable.
Duty rates are provided for your convenience and 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.
EFFECT ON OTHER RULINGS:
NY N150096, dated March 9, 2011, is hereby revoked.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division