January 15, 2009 CBP Bulletin Notice on Classification of Crme Brulees
In the January 15, 2009 issue of the U.S. Customs and Border Protection Bulletin (Vol. 43, No. 4), CBP published a notice proposing to modify one ruling and revoke a treatment as follows:
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Proposed modification of ruling; proposed revocation of treatment. CBP is proposing to modify a ruling on the classification of crme brulees. Additionally, CBP proposes that this notice covers any rulings on this merchandise that may exist but have not been specifically identified. CBP is also proposing to revoke any treatment it has previously accorded to substantially identical transactions.
CBP states that any party who has received a contrary written ruling or decision on the merchandise that is subject to the proposed modification and revocation, or any party involved with a substantially identical transaction, should advise CBP by February 14, 2009, the date that written comments on the proposed ruling are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.
Crme brulees. The merchandise at issue is identified as Marie Morin brand crme brulees. The crme brulees are described as fully baked custards consisting of approximately 47 percent cream, 23 percent milk, 14 percent egg yolks, 12 percent sugar, 5 percent egg whites, and less than 1 percent vanilla. They are imported in a frozen condition, in single-serving glass ramekins containing 110 grams, 6 units per retail package. A 3 gram sugar pouch is placed inside every package. Serving instructions direct the consumer to thaw the product for 20 to 24 hours and then sprinkle and burn the brown sugar topping with a chef torch or by placing it in a conventional oven for 1 to 1 minutes.
CBP is proposing to issue HQ H023498 in order to modify NY N015908 and determine that the crme brulees should be classified under HTS 1905 as "Bread, pastry, cakes, biscuits and other bakers' wares, whether or not containing cocoa," rather than under HTS 1901 as "Food preparations of goods of heading 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."
CBP proposes this change as a correction based largely on the Explanatory Notes (ENs). The ENs to heading 1901 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 state, in relevant part: This heading covers all bakers' wares...This heading includes the following products: (11) Certain bakery products made without flour (e.g., meringues made of white of egg and sugar).
(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." In HQ W968393, dated July 16, 2008, CBP explained: The text of heading 1905 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 are consumed ''as is'' and are not incorporated into other food items.)
For the above reasons, CBP now suggests that the crme brulees 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;" they are not incorporated into other food items. Accordingly, CBP proposes that they constitute bakers' wares and should be classified in heading 1905.
CBP now proposes that by application of GRI 1, the crme brulees are properly classified in HTS 1905.90.9090 as "Bread, pastry, cakes, biscuits and other bakers' wares, whether or not containing cocoa; . . .: Other: Other . . . Other."
Proposed: 1905.90.9090, 4.5%; Current: 1901.90.4700, $1.035/kilo 13.6%
January 15, 2009 CBP Bulletin (Vol. 43, No. 4) available athttp://www.cbp.gov/xp/cgov/trade/legal/bulletins_decisions/bulletins_2009/