CLA-2 CO:R:C:G 083901 JGH
R. Christian Berg, Esq.
Cole, Corette, Abrutyn
Suite 900
1110 Vermont Avenue, N.W.
Washington, D.C. 20006
RE: Classification of miniature milk chocolate bears produced
in Canada.
Dear Mr. Berg:
Your letter of March 10, 1989, concerns the classification
of miniature molded milk chocolate bears under the Harmonized
Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise is said to be composed of milk chocolate
and is in the form of miniature molded bears, which, judging
from the samples submitted, are about the size of chocolate
chips. They would be imported in boxed bags, with each bag
holding five or ten pounds, and each box containing four to six
bags. The miniature forms would be used as decorations for, or
ingredients in, ice cream creations.
ISSUE:
Whether the molded figures are classifiable under the
provision for other preparations in blocks or slabs weighing
more than 2 kg or in liquid, paste, powder, granular or other
bulk form in containers or immediate packings, of a content
exceeding 2 kg, containing not over 5.5 percent by weight of
butterfat, in subheading 1806.20.4060, HTSUS, and in addition
subject to the quota limitation of subheading 9904.10.66,
9904.10.63, or 9904.60.60, HTSUS. In the alternative, it is
claimed that the miniature chocolate forms are classifiable as
other chocolate in subheading 1806.90.0090, HTSUS.
- 2 -
LAW AND ANALYSIS:
Heading 1806.20 applies to other chocolate preparations in
block or slab, or powders, paste, liquid, granular, or other
bulk forms. Although the merchandise is shipped in bulk, it is
not a bulk form but a finished article, rather than a material
form to be made into a finished article. Therefore, subheading
1806.20 does not apply. Subheadings 1806.31.00 and 1806.32.00
would fail for the same reason: they cover blocks, slabs, or
bars and not the finished product.
Subheading 1806.90 covers other chocolate and food
preparations containing cocoa. The Explanatory Notes to
heading 1806 state that the chocolate covered in the heading
may be put up not only in slabs and bars, but also such forms
as tablets and pastilles.
The quota provisions of subheading 9904.10.66 apply to
chocolate in the various subheadings, including 1806.90, HTSUS.
Assuming that the merchandise does not contain over 5.5 percent
butterfat by weight, this quota could apply to this product.
However, it is claimed that these miniature bears would fall
into the exception in this quota for articles for consumption
at retail as candy or confection.
A confection or confectionary has been defined by the
court as sweet tasting articles which are eaten as such for
their taste and flavor without further preparation and which
are usually sold at confectionary outlets. Leaf Brands, Inc.
v. United States, 70 Cust. Ct 66, C.D. 4409 (1973). There is
no indication that this product is intended to be sold as a
confection or candy as imported; it is intended to be used as
an ingredient in or as a decoration on ice cream, and not a
confection put up for retail sale as imported. The definition
of confectionary under the HTSUS is similar.
Since the miniature milk chocolate bears are subject to
the quota restrictions in subheading 9904.10.66 if containing
5.5 percent butterfat or less by weight, or subheading
9904.10.63 if containing over 5.5 percent butterfat by weight,
the sugar quota in subheading 9904.60.60 would not apply.
- 3 -
HOLDING:
Miniature molded chocolate bears are classifiable as other
chocolate in subheading 1806.90.0090, HTSUS, dutiable at the
rate of 7 percent ad valorem. They are also subject to the
quota restraints of subheading 9904.10.66 or 9904.10.63, HTSUS,
depending on butterfat content.
Sincerely,
John Durant, Director
Commercial Rulings Division
hurley library 083901
6cc: Area Director, New York Seaport
JGHurley:jaj:5/2/89