Slip Op. 02 - 144
UNITED STATES COURT OF INTERNATIONAL TRADE
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SCHULSTAD USA, INC., :
Plaintiff, :
v. : Court No. 97-09-01572
UNITED STATES, :
Defendant. :
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Opinion
[On classification of frozen Danish foodstuff,
judgment for the defendant.]
Decided: December 9, 2002
Hodes Keating & Pilon (Lawrence R. Pilon and Jessica T.
DePinto) for the plaintiff.
Robert D. McCallum, Jr., Assistant Attorney General; John J.
Mahon, Acting Attorney in Charge, International Trade Field Office,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (Aimee Lee); and Office of Assistant Chief Counsel,
International Trade Litigation, U.S. Customs Service (Chi S. Choy),
of counsel, for defendant.
AQUILINO, Judge: To bake, or not to bake, in the state
of Denmark, that is the trans-Atlantic question that underlies this
test case within the meaning of USCIT Rule 84(c). The decision not
to fire up the oven over there has not left the U.S. Customs
Service cool to imposing duties on the danish upon entry over here,
which imposts have been protested and then sued upon by the
plaintiff importer.
Court No. 97-09-01572 Page 2
I
The duties assessed upon the entries that are the pred-
icate of this action were 8.8 and 8.2 percent ad valorem per
subheading 1901.90.90 of the Harmonized Tariff Schedule of the
United States ("HTSUS"), depending on the year of arrival. The
plaintiff continues to pray for entry duty free under subheading
1905.90.10.41 ("Frozen: . . . Pastries, cakes and similar sweet
baked products; puddings").
Following its answer to the complaint, the defendant has
interposed a motion for judgment on the pleadings or, in the al-
ternative, for summary judgment pursuant to USCIT Rule 12(c). The
plaintiff has filed papers in opposition to that motion. There-
after, it sought and obtained leave to file its own cross-motion
for summary judgment upon condition that the parties confer and
file herein either a stipulation or statement(s) within the meaning
of CIT Rule 56(h). They have complied by filing a Joint Statement
of Undisputed Material Facts, paragraphs 9-12 of which describe the
subject merchandise as consisting of "ingredients such as un-
bleached flour, eggs, leaven, fats, fruit, sugar, milk and bakery
improvers", as being "frozen and unbaked", that is, "pre-proofed,
pre-filled, flash frozen and ready for oven baking"; as being
available in "five flavors: apple crown, vanilla crown with
hazelnuts, raspberry crown, cinnamon swirl and cheese plait"; and
as "imported in bulk packages consisting of 48 units per case for
Court No. 97-09-01572 Page 3
'classic' and 100 units per case for 'mini'", each case "also
contain[ing] two icing bags for use as pastry topping."
In their joint statement, the parties stipulate that in
this case "there are no material facts as to which there exists a
genuine issue to be tried and the issues are amenable to resolution
through dispositive motions" within the meaning of USCIT Rule 56.
Upon review of their written submissions, this court concurs.
The crux of this test case is interpretation of the HTSUS
on its face, issue(s) of law that can be resolved without trial.
And the court has jurisdiction pursuant to 28 U.S.C. §§ 1581(a),
2631(a) et seq.
II
Plaintiff's entries were classified (and thereafter
liquidated) by Customs as "food preparations of flour . . . not
elsewhere specified or included[]; . . . other . . . other . ..
other . . . other . . . other . . . other", HTSUS subheading
1901.90.90. In denying plaintiff's protest thereof, the Service
referred to its Headquarters Ruling HQ 089810 (Nov. 7, 1991) to the
effect that,
[s]ince 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.1
1
Defendant's Response to Plaintiff's Cross-Motion for Sum-
mary Judgment, Exhibit A, p. 1.
Court No. 97-09-01572 Page 4
The defendant further reasons now that the words "and similar baked
products" in plaintiff's preferred HTSUS subheading 1905.90.10.41,
supra, make it "evident that the items preceding the[m] . . . must
be in fact baked prior to importation in order to fit within this
provision." Memorandum in Support of Defendant's Motion for
Judgment, p. 7. And it emphasizes that,
through plaintiff's own representations, . . . the
imported merchandise here is not subject to baking prior
to its importation. In fact, the merchandise is designed
to be baked after importation. According to the informa-
tion submitted in Schulstad's protest with attached
marketing materials, the imported merchandise is pre-
proofed[], flash frozen Danish pastry that are ready to
bake in any commercial oven.
Id. at 8.
The plaintiff replies that those words "and similar baked
articles" do
not exclude unbaked pastries from the subheading because
the[y] . . . do[] not clearly modify all the articles
enumerated before or after it. The subheading also
provides for "puddings" which are not baked.
Plaintiff's Response to Defendant's Motion for Judgment, p. 3. It
also argues that "the merchandise is an incomplete pastry and as
such would still be classifiable under Heading 1905." Memorandum
in Support of Plaintiff's Motion for Summary Judgment, p. 10.
A
The HTSUS (1997) contains General Rules of Interpreta-
tion, which govern this action as follows:
Court No. 97-09-01572 Page 5
1. . . . [F]or legal purposes, classification shall be
determined according to the terms of the headings
and any relative section or chapter notes and,
provided such headings or notes do not otherwise
require, according to the following provisions:
2. (a) Any reference in a heading to an article shall
be taken to include a reference to that arti-
cle incomplete or unfinished, provided that,
as entered, the incomplete or unfinished
article has the essential character of the
complete or finished article. . . .
(b) Any reference in a heading to a material or
substance shall be taken to include a refer-
ence to mixtures or combinations of that ma-
terial or substance with other materials or
substances. Any reference to goods of a given
material or substance shall be taken to in-
clude a reference to goods consisting wholly
or partly of such material or substance. The
classification of goods consisting of more
than one material or substance shall be ac-
cording to the principles of rule 3.
3. When, by application of rule 2(b) or for any other
reason, goods are, prima facie, classifiable under
two or more headings, classification shall be
effected as follows:
(a) The heading which provides the most specific
description shall be preferred to headings
providing a more general description. How-
ever, when two or more headings each refer to
part only of the materials or substances con-
tained in mixed or composite goods . . .,
those headings are to be regarded as equally
specific in relation to those goods, even if
one of them gives a more complete or precise
description of the goods.
(b) Mixtures, composite goods consisting of dif-
ferent materials . . ., which cannot be clas-
sified by reference to 3(a), shall be classi-
fied as if they consisted of the material or
component which gives them their essential
character, insofar as this criterion is ap-
plicable.
Court No. 97-09-01572 Page 6
(c) When goods cannot be classified by reference
to 3(a) or 3(b), they shall be classified
under the heading which occurs last in numeri-
cal order among those which equally merit
consideration.
4. Goods which cannot be classified in accordance with
the above rules shall be classified under the
heading appropriate to the goods to which they are
most akin.
* * *
6. For legal purposes, the classification of goods in
the subheadings of a heading shall be determined
according to the terms of those subheadings and any
related subheading notes and, mutatis mutandis, to
the above rules, on the understanding that only
subheadings at the same level are comparable. For
the purposes of this rule, the relative section,
chapter and subchapter notes also apply, unless the
context otherwise requires.
And these rules are to be applied in the following manner:
. . . [A] court first construes the language of the
heading, and any section or chapter notes in question, to
determine whether the product at issue is classifiable
under the heading. Only after determining that a product
is classifiable under the heading should the court look
to the subheadings to find the correct classification for
the merchandise. See GRI 1, 6. Furthermore, when deter-
mining which heading is the more specific, and hence the
more appropriate for classification, a court should
compare only the language of the headings and not the
language of the subheadings. See GRI 1, 3.
Orlando Food Corp. v. United States, 140 F.3d 1437, 1440 (Fed.Cir.
1998).
Court No. 97-09-01572 Page 7
B
The merchandise at issue herein falls within the ambit of
HTSUS Chapter 19 (Preparations of Cereals, Flour, Starch or Milk;
Bakers' Wares) (1997). And the headings of that chapter posited by
the parties as dispositive2 provide in haec verba:
1901 Malt extract; food preparations of flour, 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[.]
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[.]
To compare the language of these headings in accordance
with Orlando Food Corp. v. United States, supra, seems, at first
blush, to favor the plaintiff. If not a "pastry", then perhaps
plaintiff's product is simply an "other bakers' ware[]". If the
latter, instructive (though not conclusive3) Explanatory Note 19.01
(II)(e) indicates that heading 1901 excludes4 "[f]ully or partially
2
Perusal of chapter 19 does not detect another heading
therein that better could be construed to classify plaintiff's
goods.
3
See, e.g., Midwest of Cannon Falls, Inc. v. United States,
122 F.3d 1423, 1428 (Fed.Cir. 1997); Structural Industries, Inc.
v. United States, 26 CIT , , Slip Op. 02-141, p. 5 n. 1
(Dec. 4, 2002).
4
Emphasis in original.
Court No. 97-09-01572 Page 8
cooked bakers' wares, the latter requiring further cooking before
consumption (heading 19.05)." On the other hand, Explanatory Note
19.01 (II) indicates that
heading [1901] covers a number of food preparations with
a basis of flour or meal, of starch or of malt extract,
which derive their essential character from such materi-
als whether or not these ingredients predominate by
weight or volume.
Moreover, the foodstuffs of this heading "may be . . . in the form
of . . . doughs" and "may also constitute intermediate prep-
arations for the food industry."
However helpful these particular notes, disposition of
this matter must ultimately derive from definition of the terms at
issue--in their enacted context. And it is well-settled that when
terms of a tariff schedule are not defined either directly therein
or in its legislative history, the correct meaning is the common
meaning understood in trade and commerce. E.g., Schott Optical
Glass, Inc. v. United States, 67 CCPA 32, 34, C.A.D. 1239, 612 F.2d
1283, 1285 (1979). Cf. C.J. Van Houten & Zoon v. United States, 11
CIT 409, 410, 664 F.Supp. 514, 516 (1987)(the "common meaning of
the words appl[ies] unless Congress clearly indicated that a
commercial designation is to prevail").
(1)
Pastry has been defined by The Oxford English Dictionary,
p. 325 (2d ed. 1989) as the
collective term for articles of food made of paste . . .
or of which paste forms an essential part; now only
applied to such articles when baked, as pies, tarts, etc.
Court No. 97-09-01572 Page 9
The American Heritage Dictionary, p. 1325 (3d ed. 1996) similarly
refers to pastry as
[d]ough or paste consisting primarily of flour, water,
and shortening that is baked and often used as a crust
for foods such as pies. . . . Baked sweet foods made
with pastry: Viennese pastry.
Another lexicon offers as its primary definition "sweet baked goods
made of dough or having a crust made of enriched dough". Webster's
Third New International Dictionary, p. 1653 (1993).
Urged by the plaintiff is the concept that
"pastry" encompasses more than baked articles. Baking
does not form the essential part of the pastry. The term
"pastry" is actually derived from the Old French "paste,"
meaning a dough used in making rich pastry. . . . Thus
it is the "paste" or dough which forms the essential part
of the pastry.5
The plaintiff also advocates the adoption of a commercial defini-
tion, which is a
rich dough made from flour and salt and water and some
form of shortening (butter, goose fat, margarine, lard,
or a hydrogenated vegetable shortening). Most pastry
dough is unleavened but there are exceptions as with
Danish pastry. . . .6
And it claims to quote from The International Dictionary of
Desserts, Pastries and Confections, p. 95 (1995), which describes
Danish pastry as a
5
Plaintiff's Response to Defendant's Motion for Judgment,
p. 4 (footnote and citation omitted).
6
Memorandum in Support of Plaintiff's Motion for Summary
Judgment, p. 8, quoting Bartlett, The Cook's Dictionary and
Culinary Reference: A Comprehensive, Definitive Guide to Cook-
ing and Food, p. 340 (1996) (emphasis added by plaintiff).
Court No. 97-09-01572 Page 10
yeast risen, butter- and egg-enriched, sweet pastry dough
made using the same techniques as puff pastry and
croissants. The dough is rolled out into a large
rectangle and the butter is placed on a half or a third
of it. The dough is folded over, rolled out, and folded
again. Repeating the process several times results in
hundreds of flaky layers of dough. The pastry dough is
made into sweet rolls of various shapes with different
fillings, such as fresh and dried fruits, cheese, nuts,
almond paste, custard, or jam. Often, Danish pastry is
iced after baking.7
These definitions pressed by the plaintiff, self-evi-
dently, stick to "dough" or "pastry dough", not the preferred
edible delicacy that can arise therefrom. Moreover, since Congress
has not specified that a commercial definition control, without
baking plaintiff's product, as imported, cannot and therefore would
not satisfy the common understanding and immediate expectation of
Danish pastry.
(2)
The plaintiff argues in the alternative that its goods
are classifiable as "bakers' wares" under HTSUS heading 19058. Un-
7
Memorandum in Support of Plaintiff's Motion for Summary
Judgment, p. 9 (emphasis added by plaintiff).
8
That heading and the proffered subheading are found in the
governing HTSUS (1997) in the following format:
1905 Bread, pastry, cakes, biscuits and other bakers'
wares. . .:
* * *
1905.90 Other:
1905.90.10 Bread, pastry, cakes, biscuits and
similar baked products, and pud-
dings, whether or not containing
chocolate, fruit, nuts or confec-
tionary ........................
Frozen:
41 Pastries, cakes and similar
sweet baked products; puddings[.]
Court No. 97-09-01572 Page 11
like pastry and the plural thereof, those wares are not referenced
in the subheading(s) which the plaintiff claims should, in the end,
govern this matter. Be that as it may, the plaintiff points out
that its merchandise is sold to commercial bakeries, and it refers
to Explanatory Note 19.05(A) to the effect that heading 1905 covers
all bakers' wares, the
most common ingredients of [which] are cereal flours,
leavens and salt but they may also contain other ingredi-
ents such as gluten, starch, flour of leguminous vegeta-
bles, 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 character-
istics and appearance of the products and give them
better keeping qualitites. The products of this heading
may also be obtained from a dough based on flour, meal or
powder of potatoes.
A number of these substances are found in plaintiff's product, as
entered. See, e.g., Plaintiff's Motion for Summary Judgment,
Affidavit of Bob Krieger, para. 6; Joint Statement of Undisputed
Material Facts, para. 12. According to Mr. Krieger, plaintiff's
general manager and president, "the actual total pastry preparation
period [in Denmark is] 3,077.5 minutes, including the 48 hours of
core freezing after production and before shipping"9 to the United
States, with the frozen product arriving "mixed, laminated, layered
(turned), shaped, filled and proofed."10 The court accepts these
9
Plaintiff's Motion for Summary Judgment, Affidavit of Bob
Krieger, para. 2.
10
Id., para. 7.
Court No. 97-09-01572 Page 12
and all of the other representations of Mr. Krieger's affidavit,
including his final one that, after arrival here, "they only need
to be baked and iced, glazed or powdered."11 In addition to a lack
of any baking over there, the plaintiff does not indicate any
foreign cooking of its wares. Hence, the court must also find that
plaintiff's frozen mass of pastry ingredients arrives over here
completely uncooked. See generally Plaintiff's Motion for Summary
Judgment, Affidavit of Michael Washer. Ergo, the exclusion of
fully or partially cooked bakers' wares' coverage by HTSUS heading
1901 (in favor of heading 1905) suggested by Explanatory Note 19.01
(II)(e), supra, does not advance disposition of this action in the
direction the plaintiff prefers.
(3)
To repeat, the plaintiff does not dispute the fact that
its merchandise is not baked. E.g., Plaintiff's Response to
Defendant's Motion for Judgment, p. 3. Indeed, the plaintiff
reaffirms that the "crispy, flaky texture, the hallmark of European
pastry, is lost if the pastry is frozen after it is baked."12
Stated another way, "[a]uthentic Danish pastry is crispy, tender
11
Id., para. 8.
12
Memorandum in Support of Plaintiff's Motion for Summary
Judgment, p. 20 (emphasis in original).
. . . In this case, the named article['s] . . . frozen
state is an inventive improvement that enables commer-
cial bakers in the U.S. to produce authentic Danish
pastry in a cost efficient manner.
Id. at 20-21.
Court No. 97-09-01572 Page 13
and slightly flaky"13, and the court so finds this to be its
essential character within the meaning of General Rule of Interpre-
tation 2(a), supra. See, e.g., Memorandum in Support of Plain-
tiff's Motion for Summary Judgment, pp. 12, 16, 20; Plaintiff's
Motion for Summary Judgment, Affidavit of Michael Washer, para. 20;
Affidavit of Bob Krieger, para. 3; Exhibit A, second page; Exhibit
C; Schulstad USA, Danish Pastries (visited Nov. 8, 2002)
. Thus, the
court can concur in that part of the summary of plaintiff's
argument which articulates that,
[w]hen Schulstad's pastries are imported into the U.S.
they have already been mixed, laminated, layered
(turned), shaped, filled and proofed. The value has
already been imparted to Schulstad's pastry before it
arrives in the U.S. and before it is baked. After the
products arrive in the U.S. they need only be placed on
a baking tray and baked for 18-20 minutes. Baking is the
least complex and the last phase of producing the Danish.
. . . In fact, baking Schulstad's Danish pastry at the
published bake time of 18 minutes represents only .5% of
the product's total preparation time.14
But the court cannot concur with this summary's premise that
"Schulstad's products have the essential character of a pastry even
before they are baked."15 On the contrary, while they doubtless
enter the United States possessed of all their essential ingredi-
ents prepared with all the skill for which the state of Denmark has
13
Id. at 20.
14
Id. at 5 (citations omitted).
15
Id.
Court No. 97-09-01572 Page 14
long been well-known, clearly, it is that last step of baking -- in
America -- which imparts that essential and savored character of a
danish.
III
Since the parties have not persuaded the court what
Congress could have (or may have) intended or contemplated with the
inclusion of "Frozen . . . Pastries" in HTSUS subheading 1905.90.-
10.41, supra, and, while the goods at issue in Danish Bakers, Inc.
v. United States, 53 Cust.Ct. 168, 169, C.D. 2490 (1964), were
frozen, unbaked turnovers subject to classification under then-
applicable, different tariff schedules, which merchandise that
court found "could best be imported in the frozen form; . . .
perhaps only in that form", this court discerns no basis to
distinguish the holding of Danish Bakers that, nevertheless, frozen
foodstuff cannot be classified with baked articles if not in fact
baked before freezing. Here, this means that plaintiff's entered
frozen mass of fully prepared pastry ingredients does land in the
food "basket" provision of HTSUS heading 1901, which is what the
U.S. Customs Service came to conclude.
Judgment for the defendant will enter accordingly.
Decided: New York, New York
December 9, 2002
________________________________
Judge