CLA-2 RR:CTF:FTM H244172 EGJ
Port Director
U.S. Customs and Border Protection
City View Plaza-Suite 3000
#48 Rd. 165 Km. 1.2
Guaynabo, Puerto Rico 00968-8000
Attn: Laramarie Calero, Import Specialist
Re: Application for Further Review of Protest No. 4909-13-100021: Classification of Pretzel Dough Mix and Soft Pretzel Dough Mix
Dear Port Director:
This is in response to Protest No. 4909-13-100021, dated April 4, 2013, filed by counsel on behalf of Helapan Inc. (Protestant), in response to your classification of pretzel dough mix and soft pretzel dough mix under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The first product at issue is a dry pretzel dough mix. According to information provided by the Protestant, the mix consists of the following ingredients: flour, sugar, brown sugar, canola oil, salt and malted barley flour. U.S. Customs and Border Protection (CBP) Laboratory Report No. SJ20130410 (June 19, 2013) states that the test results for the different types of ingredients are consistent with the product composition provided by the Protestant. The lab report further states that the pretzel dough mix did not show any leavening activity.
The second product at issue is a dry soft pretzel dough mix. According to information provided by the Protestant, the mix consists of the following ingredients: flour, sugar, brown sugar, canola oil, salt and malted barley flour. CBP Laboratory Report No. SJ20130409 (June 19, 2013) states that the test results for the different types of ingredients are consistent with the product composition provided by the Protestant. The lab report further states that the soft pretzel dough mix did not show any leavening activity.
ISSUE:
What is the tariff classification of the pretzel dough mix and the soft pretzel dough mix under the HTSUS?
LAW AND ANALYSIS:
The instant Protest and Application for Further Review (AFR) covers four entries of the subject merchandise. The four entries were made between October 15, 2012, and December 17, 2012. On March 8, 2013, CBP liquidated the four entries under subheading 1901.20.50, HTSUS, which provides for mixes and doughs for the preparation of bakers’ wares which are also dairy products described in Additional U.S. Note 1 to Chapter 4.
The Protest was timely filed on April 4, 2013. The Protestant claims that the subject merchandise is properly classified under subheading 1901.20.80, HTSUS, which provides for “other” mixes and doughs for the preparation of bakers’ wares. The matter is protestable as a decision on classification. 19 U.S.C. §1514(a)(2). The Protestant’s AFR satisfies application for further review criteria because Protestant alleges that the Port’s classification of the two mixes is inconsistent with New York Ruling Letter (NY) N190037, dated November 16, 2011, and NY I84271, dated August 12, 2002. 19 C.F.R. § 174.24(a).
Classification determinations under the Harmonized Tariff Schedule of the United States (HTSUS) are made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
The 2012 HTSUS provisions at issue are as follows:
1901 Malt extract; food preparations of flour, groats, meal, starch or malt extract, not containing cocoa or containing less than 40 percent by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included; food preparations of goods of headings 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:
1901.20 Mixes and doughs for the preparation of bakers' wares of heading 1905:
Other:
* * *
Other:
Dairy products described in additional U.S. note 1 to chapter 4:
1901.20.50 Other.
* * *
Other:
1901.20.80 Other.
* * *
1901.90 Other:
Other:
Other:
Other:
1901.90.90 Other.
* * *
1905 Bread, pastry, cakes, biscuits and other bakers' wares, whether or not containing cocoa; communion wafers, empty capsules of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products.
* * *
Additional U.S. Note 1 to Chapter 4:
For the purposes of this schedule, the term "dairy products described in additional U.S. note 1 to chapter 4" means any of the following goods: malted milk, and articles of milk or cream (except (a) white chocolate and (b) inedible dried milk powders certified to be used for calibrating infrared milk analyzers); articles containing over 5.5 percent by weight of butterfat which are suitable for use as ingredients in the commercial production of edible articles (except articles within the scope of other import quotas provided for in additional U.S. notes
2 and 3 to chapter 18); or, dried milk, whey or buttermilk (of the type provided for in subheadings 0402.10, 0402.21, 0403.90 or 0404.10) which contains not over 5.5 percent by weight of butterfat and which is mixed with other ingredients, including but not limited to sugar, if such mixtures contain over 16 percent milk solids by weight, are capable of being further processed or mixed with similar or other ingredients and are not prepared for marketing to the ultimate consumer in the identical form and package in which imported.
* * *
It is undisputed that the two mixes are classified under heading 1901, HTSUS, as food preparations of flour. Both the Protestant and the Port support classifying the two mixes under subheading 1901.20, as mixes for the preparation of bakers' wares of heading 1905. However, we find that the subject merchandise is properly classified under subheading 1901.90, HTSUS, as an “other” type of food preparation of flour.
CBP has a long-standing practice that only mixes which contain yeast or baking soda (sodium bicarbonate) are classifiable as preparations for bakers’ wares under subheading 1901.20, HTSUS. See, e.g. NY 806681, dated February 28, 1995, NY G86010, dated January 18, 2001, NY H85004, dated August 30, 2001, NY N077556, dated October 2, 2009, and NY N255513, dated August 19, 2014. Yeast and baking soda are leavening agents, and leavening agents are essential ingredients for bakers’ wares. When a mix contains yeast, baking soda, or both, then CBP takes the view that it is manufactured for the preparation of bakers’ wares rather than for other purposes.
The Protestant cites to NY N190037 to support classification of the subject merchandise under subheading 1901.20, HTSUS. In NY N190037, CBP classified a frozen, unbaked pretzel under subheading 1901.20, HTSUS. However, the unbaked pretzel in that ruling contained yeast. Therefore, the unbaked pretzel was properly classified as a preparation for baker’ wares under subheading 1901.20, HTSUS. As the instant pretzel mix and soft pretzel mix do not contain yeast or baking soda, they are distinguishable from the merchandise under consideration in NY 190037.
The Protestant also cites to NY I84271 for support. In that ruling, CBP classified a ready to use dry baking mix for biscuits, pancakes and pizza dough under subheading 1901.20, HTSUS. The baking mix in that ruling contained baking soda (sodium bicarbonate). Therefore, it was properly classified as a preparation for bakers’ wares under subheading 1901.20, HTSUS.
When a food preparation of flour does not contain any leavening agents, CBP classifies it under subheading 1901.90, HTSUS, as an “other” type of flour preparation. See, e.g. NY 811663, dated July 10, 1995, NY D85404, dated December 9, 1998, NY I80738, dated April 30, 2002, and NY N156595, dated April 5, 2011. As the instant pretzel mixes do not contain any leavening agents, we find that they are properly classified under subheading 1901.90.90, HTSUS.
HOLDING:
By application of GRIs 1 and 6, the pretzel dough mix and the soft pretzel dough mix are classified under subheading 1901.90.90, HTSUS, which provides, in pertinent part, for “[F]ood preparations of flour, groats, meal, starch or malt extract, not containing cocoa or containing less than 40 percent by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included: Other: Other: Other: Other: Other.” The 2012 column one, general rate of duty is 6.4 percent ad valorem. Since re-classification of the merchandise as indicated above will result in a lower rate of duty than claimed, you are instructed to ALLOW the protest in full.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at www.usitc.gov.
You are to mail this letter together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division