OT:RR:CTF:FTM H293899 JER
Brenda J. Mikell
Kuehne-Nagel
10 Exchange Place, 20th Floor
Jersey City, NJ 07302
RE: Revocation of NY N284950; Tariff Classification of Frozen Baked Products
Dear Ms. Mikell:
On May 3, 2017, U.S. Customs and Border Protection (“CBP”) issued New York Ruling
Letter (“NY”) N284950 in response to your March 28, 2017, request for a binding ruling on
behalf of Creapan USA Corp., pertaining to the tariff classification of frozen baked goods from
Belgium under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). In
NY N284950, CBP classified the two frozen baked goods, “Traditional Dutch Crepes,” item
number 100516, and “Delicious Mini Pancake Bites,” item number 303822 , under subheading
1905.90.10, HTSUS, which provides for “Bread, pastry, cakes, biscuits and other bakers’ wares,
whether or not containing cocoa: Other: Bread, pastry, cakes, biscuits, and similar baked
products, and puddings, whether or not containing chocolate, fruit, nuts or confectionery: Frozen:
Pastries, cakes and similar sweet baked products.” CBP has since reviewed NY N284950 and
determined that it was incorrect. For the reasons set forth below, CBP is revoking NY N284950
to reflect the correct tariff classification of both frozen baked goods.
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 February 19, 2025, in Volume 59, Number 8, of the Customs
Bulletin. No comments were received in response to this notice.
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FACTS:
NY N284950 described the “Traditional Dutch Crepes” as follows:
Crepean brand “Traditional Dutch Crepes,” item number 100516, is said to contain
approximately 37 percent water, 31 percent wheat flower, 14 percent palm oil, 10 percent
eggs, 5 percent skimmed milk powder, 3 percent sugar, and less than 1 percent each salt,
monocalcium phosphate, and sodium bicarbonate. A box is said to contain 8 crepes
individually wrapped in plastic film, 50 grams each, net weight. The consumer
instructions state one crepe may be pan fried for 2 minutes over medium heat with a little
oil or butter, or microwaved for 40 seconds at 1000 watts.
NY N284950 described the “Delicious Mini Pancake Bites” as follows:
Creapan brand “Delicious Mini Pancake Bites,” item number 303822, is said to contain
approximately 32 percent wheat flour, 19 percent eggs, 18 percent palm oil, 13 percent
sugar, 11 percent water, 6 percent whey powder, and less than 1 percent each,
monocalcium phosphate, sodium bicarbonate, salt, citric acid, and vanilla milk flavoring.
A box is said to contain 30 mini pancakes, 255 grams, net weight. The consumer
instructions state 6 mini pancakes may be pan fried for 3 minutes over medium heat with
a little butter, or microwaved for 40 seconds at 800 watts, or heated in an oven for 8
minutes at 180° Centigrade.
ISSUE:
Whether the subject crêpes and pancakes are classified under subheading 1905.90.10,
HTSUS, or under subheading 1905.90.90, HTSUS.
LAW AND ANALYSIS:
Classification under the 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, GRI 2 through GRI 6,
may then be applied.
The 2025 HTSUS provisions under consideration are as follows:
1905 Bread, pastry, cakes, biscuits and other baker’s wares, whether or not containing cocoa;
communion wafers, empty cachets of a kind suitable for pharmaceutical use, sealing wafers, rice
paper and similar products.
* * *
1905.90 Other:
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1905.90.10 Bread, pastries, cakes, biscuits, pudding and similar baked goods
1905.90.90 Other…
1905.90.90.90 Other...
* * * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”)
constitute the official interpretation of the HTSUS at the international level. While not legally
binding or 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 (August 23, 1989).
The EN to 1905, HTSUS, provides, in relevant part, as follows:
19.05 – Bread, pastry, cakes, biscuits and other baker’s wares, whether or not containing cocoa; communion
wafers, empty cachets of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar
products.
1905.10 – Crispbread
1905.20 - Gingerbread and the like
- Sweet biscuits; waffles and wafers :
1905.31 - - Sweet biscuits
1905.32 - - Waffles and wafers
1905.40 - Rusks, toasted bread and similar toasted products
1905.90 – Other
(A) Bread, pastry, cakes, biscuits and other balers’ 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….[.]
* * *
The heading includes the following products :
(1) Ordinary Bread
(2) Gluten bread
(3) Unleavened bread
(4) Crispbread
(5) Rust, toasted bread, and other similar toasted products
(6) Gingerbread and the like
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(7) Pretzels
(8) Biscuits
a. Plain biscuits
b. Sweet biscuits
(9) Waffles and wafers which are light fine bakers’ wares baked between patterned metal plates.
(10) Pastries and cakes, containing ingredients such as flour, starches, butter or other fats, sugar milk,
cream, eggs, cocoa, chocolate, coffee, honey, fruit, liqueurs, brandy, albumen, cheese, meat, fish,
flavourings, yeast, or other leavening agents.
(11) Certain bakery products made without flour
(12) Crêpes and pancakes
(13) Quiche
(14) Pizza
(15) Crisp savory food products
* * * * *
Classification of the goods under heading 1905, HTSUS, is not in dispute. The decision
in NY N284950 correctly classified the two baked frozen goods under heading 1905, HTSUS,
because based on their description, ingredients, and manner of production the “Traditional Dutch
Crepes,” and “Delicious Mini Pancake Bites,” are described by the terms of the heading. In
particular, EN 19.05 A (12) expressly lists crêpes and pancakes as goods that are included in
heading 1905, HTSUS. Similarly, based on the terms and construction of the subheadings, both
products are provided for under the terms of subheading 1905.90, HTSUS. This is evident based
on the terms of the preceding six-digit subheadings which provide for goods eo nomine or by
specific product type. Similarly, EN 19.05 lists the goods by name under their respective
subheadings, none of which include crêpes or pancakes. For instance, subheading 1905.10,
HTSUS, provides for crispbread, while subheading 1905.20, HTSUS, provides for gingerbread
and sweet biscuits, and 1905.32 provides for waffles and wafers. Crêpes and pancakes not being
enumerated eo nomine in any of the preceding subheadings can only be classified in the
remaining subheading 1905.90 HTSUS, as “Other.”
At issue is the tariff classification of the subject crêpes and pancakes. Subheading
1905.90.10, HTSUS, provides for “Bread, pastry, cakes, biscuits and similar baked products and
puddings, whether or not containing chocolate, fruit, nuts or confectionery.” Because crêpes and
pancakes are not bread, pastry, cakes, biscuits or puddings, in order for the subject “Traditional
Dutch Crepes” and “Delicious Mini Pancake Bites,” to be classified under subheading
1905.90.10, these products would have to be classifiable as “similar baked goods.” For purposes
of subheading 1905.90.10, HTSUS, to be classified as a “similar baked products” the goods must
be baked and the goods must be similar to bread, pastry, cakes, biscuits or puddings.
Conversely, for the subject goods to be classified under subheading 1905.90.90, HTSUS, the
subject crêpes and pancakes would have to be defined and classifiable as “other bakers’ wares.”
In Headquarters Ruling Letter (“HQ”) H015429, dated December 11, 2007, CBP
discussed the definition of “baker’s wares” stating that:
The term “bakers’ wares” is not defined in the HTSUS or ENs. As such, we
presume the correct meaning to be the same as its common meaning understood in
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trade and commerce. See, Schulstad USA, Inc., v. United States, 26 C.I.T. 1347,
240 F. Supp. 2d 1335, 1351 (2002). Since the dictionary does not define the
compound term “bakers’ wares”, we examine the definition of each word
individually. The term “baker” is defined as “one that specializes in the making of
breads, cakes, cookies, and pastries”. The term “wares” is defined as “manufactured
articles…offered for sale”. See, Webster’s Third New International Dictionary
(Unabridged) (1961). Accordingly, “bakers’ wares” can be understood to mean
“manufactured articles offered for sale by one that specializes in the making of
breads, cakes, cookies, and pastries”, such as those articles commonly sold in a
bakery.
Similarly, in HQ W968393, dated July 16, 2008, CBP expounded on the definition of
“bakers’ wares” within the context of the subheading concerning “other bakers’ wares,” noting
that:
This definition [of baker’s wares] was based on the dictionary definition of the word
“baker” and the word “wares” since we were unable to find a dictionary that defined
the compound term “bakers’ wares”. 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. [Emphasis added].
Based on the above definition, “other baker’s wares” is distinguishable from bread,
pastry, cakes, and biscuits. Likewise, given the structure of the subheadings, it follows that
“other baker’s wares” is also distinguishable from “similar baked goods” since such baked goods
must be similar to bread, pastry, cakes, and biscuits.
Pancakes are defined as “a flat cake made of thin batter and cooked on a griddle on both
sides.” See Pancake, https://www.merriam-webster.com/dictionary/pancake (Last visited Nov.
20, 2024). A crêpe is defined as a small, very thin pancake. Both pancakes and crêpes begin as
a batter that is poured onto either on a griddle, a skillet or pan cooked over high heat. See Crepes
v. Pancakes Are They The Same, https://www.dulcecrepes.com/blog/crepes-vs-pancakes/ (Last
visited Nov. 20, 2024); see also, The Difference Between Crepes and Pancakes Explained, Allie
Sivak, https://www.chowhound.com/food-news/176459/what-is-the-difference-between-crepes-
and-pancakes/ (Last visited November 20, 2024). See also, Crepes vs. Pancakes: What’s The
Difference?, https://www.tastingtable.com/677298/crepes-vs-pancakes-whats-the-difference/
(Last visited Nov. 20, 2024). Unlike bread, cakes, pastries, and biscuits, crêpes, and pancakes
are not oven baked. Id. Instead, they are cooked on a stove top. Similarly, pancakes are not used
as a dessert like pastries, cakes, and puddings. Although, crêpes can be used as a dessert, crêpes
are also used as a breakfast food or dish to be served during brunch. Id. Crêpes can be filled with
either a sweetened filing (e.g., fruit, chocolate, creams) or with savory fillings such as
vegetables, sauces, meats, sea foods or poultry. Id. Because the subject crêpes and pancakes are
not oven baked and are not used (or exclusively used) as a dessert, it cannot be said that they are
baked goods which are similar to breads, cakes, pastries, or biscuits. Lastly, although
subheading 1905.90.10, HTSUS is not limited to dessert products, it does require that its
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products be oven baked. The decision in Danish Bakers, Inc. v. United States, 53 Cust. Ct. 168, 169,
C.D. 2490, C.D. 2490 (1964) stated that “frozen foodstuff cannot be classified with baked
articles if not in fact baked before freezing.” Thus, a batter-based product which is cooked on a
griddle, skillet or pan cannot be classified as an oven baked product if it is not baked in an oven.
The subject goods are not oven baked and therefore are not classifiable under subheading
1905.90.10, HTSUS.
Instead, crêpes and pancakes are more akin to waffles and wafers, which EN 19.05 (9)
describe as being “light fine bakers’ wares baked between patterned metal plates.” Much like
waffles and wafers crêpes and pancakes begin as a batter, which is cooked on a hot metal
griddle, skillet, or pan. Like waffles, they are typically served during breakfast and are not oven
baked. However, crêpes and pancakes are not classified as a waffles or wafers under subheading
1905.32, HTSUS, since this subheading is specific to waffles and wafers. As previously
established, crêpes and pancakes are not classified as baked goods, which are similar to bread,
cakes, pastries, biscuits, or puddings in subheading 1905.90.10, HTSUS. Accordingly, when as
the case is here, a product is not specifically provided for under a specific subheading, they are
classified in a basket provision or residual provision. See E.M. Industries v. U.S., 999 F. Supp.
1473, 1480 (CIT 1998) (“‘Basket’ or residual provisions of HTSUS headings … are intended as
a broad catch-all to encompass the classification of articles for which there is no more
specifically applicable subheading.”). The residual provision for “other baker’s wares” not
specifically provided for is 1905.90.90, HTSUS, which provides for, “Bread, pastry, cakes,
biscuits and other baker’s wares, whether or not containing cocoa; communion wafers, empty
cachets of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products:
Other: Other.”
Classifying the subject crêpes and pancakes under subheading 1905.90.90, HTSUS, is
consistent with previous rulings in which CBP classified crêpes and pancakes under subheading
1905.90.90, HTSUS. For example, in NY R03167, dated March 20, 2006, CBP classified
pancakes stuffed with toppings under subheading 1905.90.90, HTSUS. See also, NY N114318,
dated July 16, 2010 (In which CBP classified frozen pancakes stuffed with potato, rice, and
onion in subheading 1905.90.90). Likewise, CBP has previously classified crêpes in subheading
1905.90.90, HTSUS. In NY N244223, dated August 13, 2013, CBP classified crêpes under
subheading 1905.90.90, HTSUS. See also, NY E89245, dated November 10, 1999, and NY
878340, dated October 8, 1992 (In both rulings, CBP classified crêpes in subheading 1905.90.90,
HTSUS).
HOLDING:
By application of GRI 1, the subject “Traditional Dutch Crepes” and “Delicious Mini
Pancake Bites,” are classified in heading 1905, HTSUS, specifically, in subheading 1905.90.90,
HTSUS, which provides for: “Bread, pastry, cakes, biscuits and other baker’s wares, whether or
not containing cocoa; communion wafers, empty cachets of a kind suitable for pharmaceutical
use, sealing wafers, rice paper and similar products: Other: Other: Other.” The 2024 column
one, general rate of duty is 4.5 % ad valorem.
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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
https://hts.usitc.gov/current.
EFFECT ON OTHER RULINGS:
NY N284950, dated May 3, 2017, 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,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division
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