CLA-2 CO:R:C:G 086346 STB
District Director of Customs
909 First Ave., Rm 2039
Seattle, WA 98174
RE: Internal Advice No. 74-89 on frozen, partially baked pizza
crust from Canada.
Dear Sir:
This is a decision in response to your memorandum of
December 5, 1989 (file: CLA-2-19:N:N1:228-130), in which you
forwarded a request for internal advice. Our decision on
Internal Advice No. 74-89 is as follows:
FACTS:
The product at issue is frozen, partially baked pizza crust
from Canada. The dough utilized for these crusts consists of
unbleached enriched flour, water, vegetable oil, yeast, salt, a
spoilage retardant, and a dough relaxer. Individual doughballs
are rounded, oiled with vegetable oil and then placed on pans to
be baked. The doughballs are then proofed in a rotary proofer,
pressed out to size, proofed again and pressed again. The now
flattened pizza dough is then baked at 600 degrees fahrenheit for
3 minutes. It is then cooled, wrapped and frozen for shipment.
The resulting item is said to be 60% baked, requiring additional
baking before reaching the consistency of pizza crust, the use
for which counsel for the importer claims the item is singularly
dedicated. The ultimate consumer is expected to complete the
baking of the crust when preparing the end product.
The counsel for the importer is requesting that the crusts
be classified as incomplete or unfinished "other bakers' wares"
under 1905.90.90, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA). In your memorandum of December 5, 1989, you
stated that you agree with this classification since the
partially baked crusts no longer possess the properties of dough;
dough would be classified under 1901.20.00, HTSUSA. The National
Import Specialist (NIS) in New York is now agreeing that this
product is not dough. The NIS is arguing, however, that this
product should be classified as other "food preparations of
flour", under 1901.90.90, HTSUSA.
-2-
ISSUE:
Whether the subject pizza crusts should be classified as a
dough, unfinished "other bakers' wares", or as other food
preparations of flour.
LAW AND ANALYSIS:
Classification under the HTSUSA is governed by the General
Rules of Interpretation (GRI's). GRI 1 provides that
classification is determined first in accordance with the terms
of the heading together with any relevant Section or Chapter
notes.
It is our opinion that the pizza crusts can be classified by
reference to GRI 1. Among other items, the terms of heading 1901
apply to "food preparations of flour". The Explanatory Notes
(EN), the official interpretation of the Harmonized System at the
international level, state that the products of subheading 1901
must have a basis of flour and derive their essential character
from such ingredient, although other substances may be added.
Additionally, the goods of this heading may be intermediate
preparations for the food industry, including ready mixed doughs.
(EN at 140-141)
While we agree that these crusts have lost the properties of
dough, we also believe that heading 1901, as described above, is
the proper heading of classification for this product.
Since classification can be determined by reference to GRI
1, there is no need to proceed to GRI 2(a) to determine whether
these crusts constitute incomplete or unfinished "other bakers'
wares" under heading 1905. Moreover, it would be impracticable
to classify an item that is 60% baked under heading 1905. The
question would then arise as to the classification of items that
are 10% baked, 20% baked, etc. It could be argued that an item
that is 95% baked, such as "brown & serve" rolls, possesses the
essential character of bakers' wares. However, since we have
heading 1901, under which items other than dough can be
classified, there is no need to force products such as the crusts
at issue into heading 1905.
-3-
HOLDING:
The pizza crusts are properly classifiable under subheading
1901.90.90, HTSUSA, which provides for "Malt extract; food
preparations of flour...: Other: Other: Other: Other." The
applicable duty rate is 10%. You should notify the internal
advice applicant of this decision and furnish him with a copy.
Sincerely,
Jerry Laderberg, Acting Director
Commercial Rulings Division