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HQ 089810


November 7, 1991

CLA-2 CO:R:C:F 089810 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 1901.90.9095

Mr. Ebbe Hviid Christensen
Trade Commissioner
Danish Trade Office
15450 New Barn Road, Suite 303
Miami Lakes, Florida 33014-2169

RE: Frozen Unbaked Pastries

Dear Mr. Christensen:

This is in reference to your letter of June 21, 1991, concerning 6 different frozen unbaked pastries produced by A/S Hatting Bageri in Denmark.

FACTS:

The pastries, according to descriptive literature you provided, is frozen, pre-proofed, unbaked Danish pastry products consisting of a pastry dough filled with a fruit or confectionery preparation. The composition of the dough is the same for all varieties of danish, i.e. wheat flour, water, vegetable margarine, eggs, yeast, sugar, salt, and emulsifier. The articles contain less that 5.5 percent butterfat and are put up in non-retail packages.

ISSUE:

What is the tariff classification of the unbaked pastries filled with a fruit or confectionery preparation?

LAW AND ANALYSIS:

Classification merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods, and if the heading and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

In reviewing the possible headings under which the articles could be classified, we noted heading 1901, HTSUSA, which deals with various food preparations, and heading 1905, HTSUSA, which deals with bakers' wares, etc. Since the articles are unbaked and will only be baked after importation, we do not believe that they would be considered products of the type specified in heading 1905, HTSUSA, at the time of importation. In Headquarters Ruling Letter (HRL) 086346, dated April 17, 1990, we held that partially baked pizza crusts, while no longer a dough under subheading 1901.20.00, HTSUSA, had not reached the level of bakers' wares under subheading 1905.90.90, HTSUSA.

We next considered where in heading 1901, HTSUSA, these articles could be classified. Subheading 1901.20.00, HTSUSA, provides for mixes and doughs for the preparation of bakers' wares of heading 1905, HTSUSA. In connection therewith we considered the Explanatory Notes (EN's) to the Harmonized System. The EN's, although not legally binding, reflect the opinion of the international tariff classification experts. We specifically noted that EN 19.01, in discussing food preparations of flour, includes therein, ready-mixed doughs, consisting essentially of cereal flour with sugar, fat, eggs or fruit (including those put up in molds).

In analyzing subheading 1901.20.00, HTSUSA, we concluded that it did not apply to the articles under consideration. The pastries have been advanced beyond the point where they could be considered doughs and they are not mixes as specified in the subheading. Also, since the fruit and confectionery preparations are used to fill the dough products rather than being incorporated into the flour mixture, they would not be ready- mixed doughs, as described in EN 19.01.

Accordingly, we have concluded that the pastries would be considered other food preparations under subheading 1901.90, HTSUSA.

HOLDING:

Frozen unbaked pastries filled with fruit and confectionery preparations are classifiable under subheading 1901.90.9095, HTSUSA, and are dutiable at a general rate of duty of 10 per cent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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