CLA-2 CO:R:C:G 083700 SS

Tariff No. : 1704.90.2005, 1704.90.2010, 1704.90.4000


Mr. Richard Callebaut
One Northbrook Place
5 Revere Drive, Suite 200
Northbrook, IL 60062

RE: Tariff Classification of white chocolate, officially called confectioner's coating.

Dear Mr. Callebaut:

This is in response to your letter dated February 7, 1989, addressed to our New York office on behalf of Callebaut of Belgium, requesting tariff classification for a product described as white chocolate under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise under consideration is described as white chocolate, and is officially called confectioner's coating. It is imported in blocks of 5 kilograms (11 lbs), and is used in the confectionery industry for different purposes. The composition of three varieties of the subject merchandise is stated to be as follows:

INGREDIENTS W4NV CW2 WNV

Cocoa Butter 30.59 26.61 27.79 Sugar 54.06 48.52 41.01 Full milk Powder 14.92 24.43 30.79 Lecithin & Vanillin 0.43 0.44 0.41

ISSUE:

Whether the subject white chocolate, officially called confectionery's coating, is properly classifiable under subheading 1704.90.2005, 1704.90.2010, or 1704.90.4000.

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LAW AND ANALYSIS:

Classification under the HTSUS 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 headings and any relative Section or Chapter notes.

The subject merchandise is described as white chocolate, and officially known as confectioner's coating. It is imported in 5 kilogram blocks and is used by the confectionery industry for different purposes. In a subsequent letter dated May 2, 1989, you state that since January 1, the local Customs offices in San Francisco and New York have classified the subject merchandise under subheading "1704.90.20.05.9 or 10.20" (we assume you mean subheading 1704.90.20059 or 1704.90.2010). You claim that among the reasons for such a classification (1704.90.2005) are that the subject merchandise is sold to housewives in the 5 kilogram blocks, and that the same merchandise can be delivered in any size (2 ounce bars, half pound bars, 1 pound bars and 11 pounds bars), without changing the original composition, taste, physical, chemical or biological conditions.

Subheading 1704.90.2005, HTSUS, provides for other sugar confectionery (including white chocolate), not containing cocoa, put up for retail sale. Subheading 1704.90.2010, HTSUS, provides for other sugar confectionery (including white chocolate), not containing cocoa, other than put up for retail sale. Subheading 1704.90.4000, HTSUS, provides for sugar confectionery other than confections or sweetmeats ready for consumption, articles of milk or cream.

For purposes of tariff classification, the merchandise in issue in neither ready for consumption nor put up for retail sale. The facts state that the white chocolate in issue is used in the confectionery industry for many purposes. The obvious implications of such a statement is that the white chocolate is not ready for consumption because it will be put to a variety of uses by the confectionery industry. Also, despite your claim, it is unlikely that the average "housewife" will buy white chocolate in 5 kilogram blocks. Further, the fact that the subject white chocolate can be delivered in the sizes previously described so as to be ready for home consumption or retail sale is not controlling. Principles of tariff classification dictate that merchandise is classifiable in the form in which it is imported.

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However, whether the subject merchandise is ready for retail sale or consumption is not determinative as to the proper classification in the instant case. This issue was addressed only in response to the claims submitted in the ruling request. The subject merchandise contains milk ranging in amounts from 14.92 percent to 30.79 percent. Based on this composition, the subject merchandise is specifically described under subheading 1704.90.4000, HTSUS. Further, classification under this subheading is consistent with the intent of the quota restrictions of the U.S. Department of Agriculture.

HOLDING:

In view if the foregoing, the subject merchandise, white chocolate officially called confectioner's coating, is properly classifiable under subheading 1704.90.4000, HTSUS, subject to quota restrictions of subheading 9904.10.60.

Sincerely,

John Durant, Director
Commercial Ruling Division