United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1991 HQ Rulings > HQ 0087335 - HQ 0087446 > HQ 0087385

Previous Ruling Next Ruling


HQ 087385


January 2, 1991
CLA-2 CO:R:C:G 087385 SLR

CATEGORY: CLASSIFICATION

TARIFF NO.: 1905.90.9090

John M. Peterson, Esq.
Neville, Peterson & Williams
39 Broadway
New York, NY 10006

RE: NYRL 851608 Reconsidered and Affirmed; Fully Cooked Pastry Product from Canada

Dear Mr. Peterson:

This ruling is in response to your letter of June 1, 1990, on behalf of your client, The Pillsbury Company, requesting the reconsideration of New York Ruling Letter (NYRL) 851608 issued May 10, 1990.

FACTS:

The product is described as consisting of a pastry dough stuffed with sauce, meat, cheese, spices and flavorings. The meat content will range from 9 to 13.5 percent of the product's overall weight. The stuffed article will be fried, frozen, and packed in retail containers. The food product is fully cooked, requiring only reheating prior to consumption.

In NYRL 851608, our New York office classified the subject product in subheading 1905.90.9090, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for bread pastry, cakes, biscuits and other bakers' wares: other: other: other, dutiable in 1991 at 10 percent ad valorem (7 percent ad valorem under the United States-Canada Free Trade Agreement (FTA)).

In your letter, you claim that the subject product is classifiable in subheading 1905.90.1040, HTSUSA, which provides for bread, pastry, cakes, biscuits and similar baked products, and puddings, whether or not containing chocolate, fruit, nuts or confectionary, frozen. Items classifiable under this subheading enter the U.S. free of duty.

ISSUE:

What is the proper classification of the subject meat and cheese filled pastry under the HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

Heading 1905, HTSUSA, provides, in pertinent part, for "[b]read, pastry, cakes, biscuits and other bakers' wares." The explanatory note to heading 1905 indicates that the heading includes:

(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, flavorings, yeast or other leavening ingredients.
(Underscore added.)

The note further provides that "[p]roducts containing more than 20% by weight of sausage, meat...(e.g., pies consisting of meat enclosed in pastry) are excluded (Chapter 16).

The subject product contains ingredients sanctioned by the Nomenclature. Moreover, its meat content makes up only 9 to 13 percent of the product. Consequently, the instant product is classifiable in heading 1905, HTSUSA. We now focus our attention to that product's proper classification at the subheading level.

Subheading 1905.90.10, HTSUSA, provides for "[b]read, pastry, cakes, biscuits and similar baked products, and puddings, whether or not containing chocolate, fruit, nuts or confectionery." Provisions of similar tenor have appeared in previous tariff schedules.

Paragraph 733 of the Tariff Act of 1930 provided for "[b]iscuits, wafers, cake, cakes, and similar baked articles, and puddings, all of the foregoing by whatever name known, whether or not containing chocolate, nuts, fruits, or confectionery or any kind...." In Renkin & Yates Smith Corp. v. United States, 1 Cust. Ct. 309, C.D. 73 (1938), the Customs Court held that certain harlequin sticks, cheddar sandwiches, piquant sandwiches, celery sandwiches, and stiltonette wafers were classifiable not in paragraph 733, but in paragraph 1558 -- the provision for manufactured articles, not specially provided for.

In so doing, the court emphasized that the phrase "whether or not containing chocolate, nuts, fruits, or confectionery" limited the enumerated products to such items containing only added chocolate, fruits, nuts, or confectionery; products containing ingredients other than those specifically identified were classifiable elsewhere. Customs later applied this rationale when interpreting item 182.20 -- the successor provision to paragraph 733 under the Tariff Schedules of the United States Annotated (TSUSA).

Item 182.20, TSUSA, provided for "[b]iscuits, cake, cakes, wafers, and similar baked products, and puddings, all of the foregoing by whatever name known, and whether or not containing chocolate, fruit, nuts, or confectionery." In HRL 075845 of May 9, 1985, (later modified by HRL 076065 of June 17, 1985), croissants filled with either ham and cheese; turkey, wild rice, mushrooms, and onions; or cream cheese, pineapple, and nuts were classified as other edible preparations not specifically provided for in item 183.05, TSUSA. The presence of ingredients other than those specifically enumerated in item 182.20 effectively precluded classification within that provision.

As the tariff language of paragraph 733 and item 182.20 is substantially the same as the successor provision in subheading 1905.90.10, judicial construction of the predecessor language appears to be instructive as to the proper construction of the present provision in subheading 1905.90.10, HTSUSA. Consequently, as the subject pastry product contains ingredients other than "chocolate, fruits, nuts or confectionery," to wit, cheese and meat, it is not classifiable in subheading 1905.90.10, HTSUSA.

HOLDING:

NYRL 851608 of May 10, 1990 is affirmed. The fully cooked pastry product is classifiable in subheading 1905.90.9090, HTSUSA, which provides for bread, pastry, cakes, biscuits and other bakers' wares: other: other: other. The General rate of duty is 10 percent ad valorem.

Articles classifiable under subheading 1905.90.9090, HTSUSA, which have originated from Canada will be entitled to a reduced tariff rate of 7 percent ad valorem in 1991 under the FTA upon compliance with all applicable regulations.

Sincerely,

John Durant, Director
Commercial Rulings Division

Previous Ruling Next Ruling

See also: