Understanding the Harmonized Tariff Schedule of the United States (HTSUS) – Part I

The Harmonized Tariff Schedule of the United States (HTSUS) is used for determining the classification and duty rate of an import into the U.S. Sometimes an item is specifically stated in the tariff, such as frozen waffles, which come in under HTSUS Subheading 1905.32.0029. Other sweets that are imported frozen, such as “crème brûlées,” discussed in Customs Ruling HQ H023498 (3/9/09) and described as a “baked custard” upon cooking, are not so readily classifiable.

Classification is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of a good 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 2 through 6 may then be applied in sequential order.

Using the example of the crème brûlées, we look at HTSUS Heading 1905 which provides:

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:

Under the specific HTSUS subheading for the crème brûlées, subheading 1905.90.9090 provides:

1905.90.90 Other:
1905.90.9090 Other …

When an import cannot be easily classified, looking at the terms of the headings, section or chapter notes as per the GRIs, and/or utilizing the the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) will help interpret the headings of the tariff so as to find an appropriate classification.

The ENs, “although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level.” See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

As explained in Customs Ruling HQ H023498 (3/9/09), the ENs to heading 1905, HTSUS, state, in relevant part:

“This heading covers all bakers’ wares. The most common ingredients of such wares are cereal flours, leavens and salt but they may also contain other ingredients such as: gluten, starch, flour of leguminous vegetables, malt extract or milk, seeds such as poppy, caraway or anise, sugar, honey, eggs, fats, cheese, fruit, cocoa in any proportion, meat, fish, bakery “improvers”, etc. Bakery “improvers” serve mainly to facilitate the working of the dough, hasten fermentation, improve the characteristics and appearance of the products and give them better keeping qualities. The products of this heading may also be obtained from dough based on flour, meal or powder of potatoes.

This heading includes the following products:
* * * *
(11) Certain bakery products made without flour (e.g., meringues made of white of egg and sugar).”

Using the ENs for guidance, Customs explained that in a recent prior ruling (HQ W968393, 7/16/08), it had concluded that

“The text of heading 1905, HTSUS, provides for “other bakers’ wares” which, when read in the context of the entire clause of which this expression is a part, leads us to now find that the term “other bakers’ wares” refers to baked goods (or wares) other than the “bread, pastry, cakes, [and] biscuits” specified in the heading. In addition, based on the heading text and the examples provided by the ENs, it appears that goods of heading 1905, HTSUS, are consumed “as is” and are not incorporated into other food items.“

Taken in conjunction with the marketing literature submitted by the importer, Customs concluded that the crème brûlées were manufactured goods offered for sale by one who specializes in the making of pastries, akin to bakery products made without flour, such as meringues made of sugar and egg whites, as described in EN 19.05 (A)(11)). In addition, the crème brûlées being fully baked upon importation were thus, ready for consumption “as is,” as opposed to being incorporated into other food items. Customs therefore concluded that they constituted bakers’ wares and were classifiable in HTSUS heading 1905.

In a future post I will explore the rule of “Ejusdem Generis,” another means for interpreting the tariff, and its application for making a HTSUS determination.

Questions/comments? Post below or email me at clark.deanna@gmail.com