CBP Ruling H035563

HQ H035563 January 13, 2012 CLA-2 OT:RR:CTF:TCM H035563 CKG CATEGORY: Classification TARIFF NO.: 1905.90.90 Mr. John Borah Sterling Foods, Inc. 1766 Fern Place Lake Oswego, OR 97034 RE: Reconsideration of NY K86702; classification of baked crème brulee Dear Mr. Borah, This is in reference to New York Ruling Letter (NY) K86702, issued by the Customs and Border Protection (CBP) National Commodity Specialist Division on June 9, 2004, regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of frozen crème brulee. We have reconsidered this decision, and for the reasons set forth below, have determined that classification of the crème brulee in heading 1901, HTSUS, is incorrect. 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 K86702 was published on November 30, 2011, in Volume 45, Number 49, of the Customs Bulletin. No comments were received in response to this notice. FACTS: The merchandise at issue was described in NY K86702 as follows: The product is crème brulee, a custard-like dessert composed of approximately 37 percent cream, 17 percent water, 12 percent sugar, 12 percent skimmed milk, 9 percent egg yolk, 2 percent milk protein, 2 percent rice starch, and less than one percent each of xanthan gum, carrageenan, vanilla extract, and vanilla seeds. Two frozen crème brulees, each in a ceramic dish measuring approximately four inches in diameter and one inch deep, are packed for retail sale, with two sachets of brown sugar, in a cardboard box. Package instructions direct the user to sprinkle the brown sugar onto the frozen crème brulee, broil until golden brown, cool and serve. ISSUE: Whether the crème brulee is classified as a "cream" product in heading 1901, HTSUS, or as "bakers' wares" in heading 1905, HTSUS? LAW AND ANALYSIS: Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 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: Dairy products described in additional U.S. note 1 to chapter 4: Dairy preparations containing over 10 percent by weight of milk solids: 1901.90.43: Other * * * * 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 classification of substantially similar merchandise was addressed in Headquarters Ruling Letter (HQ) H015429, dated December 11, 2007, which classified frozen crème brulees in heading 1905, HTSUS. The legal reasoning and analysis employed in HQ H015429 is incorporated by reference. HQ H015429 is attached to and made a part of this ruling letter. HOLDING: By application of GRI 1, the frozen crème brulees are classified in heading 1905, HTSUS, and are specifically provided for under subheading 1905.90.90, HTSUS, as: "Bread, pastry, cakes, biscuits and other bakers' wares, whether or not containing cocoa...: Other: Other." The 2011 column one, general rate of duty is 4.5% 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 Internet at www.usits.gov/tata/hts/. EFFECT ON OTHER RULINGS: NY K86702, dated June 9, 2004, is hereby revoked. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division 2