CLA-2 CO:R:C:G 087385 SLR
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?
-2-
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.
-3-
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