CLA-2 CO:R:C:F 956246 LPF
Brain J. O'Shea, Esq.
McKenna & Cuneo
1575 Eye Street, N.W.
Washington, D.C. 20005
RE: Classification of white cake glaze and white chocolate
decorative shavings; Heading 2106, food preparations; Wilsey
Foods Inc.; Cake decorations under subheading 9904.60.60; HRL
951488; DD 886464
Dear Mr. O'Shea:
This is in response to your letter of April 12, 1994, submitted
on behalf of Albert Uster Imports, Inc., concerning the
classification of white cake glaze and white chocolate decorative
shavings under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA).
FACTS:
The merchandise at issue, white cake glaze and white chocolate
decorative shavings, was the subject of Headquarters Ruling Letter
(HRL) 951488, issued December 17, 1992, and JFK Airport Area Ruling
(DD) 886464, issued June 18, 1993, respectively. The white cake
glaze, called "C2045 White Glaze" is to be used by bakers and
confectioners to coat and decorate cakes and confections. It is
composed of: sugar (46%), vegetable oil (41.7%), and skim milk
powder (11.6%). The white chocolate decorative shavings are a
white chocolate paste in the form of shavings, used as a decorative
topping for cakes and other desserts. It will be imported in 5
kilogram cases, each made up of quarter case blocks of 1.25
kilograms. The product is ready for use and can be applied
straight from the package to the dessert. It is composed of:
vegetable oil (36.3%), sugar (35.1%), skim milk powder (12.2%),
glucose (11.6%), sorbitol (4.7%), and lecithin (.1%).
In HRL 951488, supra, and DD 886464, supra, both products were
classified in subheading 1901.90.3030 (now 1901.90.3130), HTSUSA,
as food preparations of goods of headings 0401 to 0404, other,
articles of milk or cream not specially provided for, dairy
preparations containing over 10 percent by weight of milk solids,
provided for in subheading 9904.10.60. Products classifiable
-2-
in 1901.90.3030 were dutiable at 17.5 percent ad valorem and
subject to an annual quota quantity restriction of 2,721 kilograms
pursuant to subheading 9904.10.60.
For the reasons explained below, we will consider your ruling
request to involve a prospective transaction in accordance with
section 177.1, Customs Regulations (19 CFR 177.1).
ISSUE:
Whether the white cake glaze and white chocolate decorative
shavings are classifiable within heading 1901 as food preparations
of goods of headings 0401 to 0404 or within heading 2106 as food
preparations not elsewhere specified of included.
LAW AND ANALYSIS:
In Wilsey Foods, Inc., v. United States, Slip Op. 94-46 (Ct.
Int'l Trade, decided March 16, 1994), the court addressed the
tariff classification of products called "white truffel" and "non-
temp white chips" used to coat confections and/or pastries. The
white truffel was composed of: vegetable oil (46%), sugar (39%),
skim milk powder (15%), and lecithin, vanillin, and BHA (less than
1%). The non-temp white chips were composed of: vegetable oil
(46%), sugar (45%), skim milk powder (9%), and lecithin, vanillin,
and BHA (less than 1%).
Customs had classified the products in subheading 1901.90.3030,
HTSUSA, as food preparations of milk or cream, subject to quota
restrictions pursuant to subheading 9904.10.60. The court held
that the products were appropriately classified in subheading
2106.90.6097, HTSUSA, as food preparations not elsewhere specified
or included, containing sugar derived from sugar cane and/or sugar
beets and not subject to quota. The court found that milk or cream
was not the essential ingredient, not the ingredient of chief
value, nor the preponderant ingredient in the products. In
addition, evidence elicited at the court indicated that the
coatings were comprised chiefly of vegetable fat and sugar and were
not considered milk or cream products in the industry.
The cake glaze of HRL 951488, supra, is very similar in form,
composition, and use to the Wilsey products. The shavings of DD
886464, supra, although of a somewhat different composition and
form, are used in the same manner as the Wilsey products (i.e., as
a cake or confectionery garnish). We also note that both the cake
glaze and shavings contain less milk than the Wilsey white truffel
product. Accordingly, pursuant to the Wilsey decision the instant
products are not classifiable within heading 1901, as food
preparations of milk or cream, but rather within heading 2106, as
food preparations not elsewhere specified or included. The
appropriate subheading at the six digit level is 2106.90.
-3-
With regard to quota treatment for products classifiable within
heading 2106, we note that the court did not find the Wilsey
products subject to quota in accordance with the import
restrictions established pursuant to Section 22 of the Agricultural
Adjustment Act ("Section 22"). In particular, we note that the
quota provided for in subheading 9904.60.60, covering certain
products containing over 10 percent by dry weight of sugars derived
from sugar cane or sugar beets, excepts, inter alia, "cake
decorations and similar products to be used in the same condition
as imported without any further processing other than the direct
application to individual pastries or confections."
We have consulted with the Foreign Agricultural Service of the
Department of Agriculture, concerning the definition of "cake
decorations and similar products" as provided for in subheading
9904.60.60 and, consistent with existing Customs ruling decisions,
Customs understands the cake decoration exception to mean the
following:
For purposes of subheading 9904.60.60, the phrase
"cake decorations and similar products to be used
in the same condition as imported without any
further processing other than the direct application
to individual pastries or confections" means 1)
products used in their imported condition to coat
or fill pastries or confections, or 2) products
used to coat or fill pastries or confections after
a change in form (e.g., melting or heating, reduction
in size), insofar as the product itself need not
undergo a necessary, additional preparation,
treatment, or manufacture nor a blending or combining
with any ingredients, in order to become a finished
product.
Because it is our understanding that the instant products are used
in their imported condition, that is, straight from the package to
the dessert, to coat pastries or confections, they fit within the
parameters of the cake decoration exception as provided above. The
products are exempt from the 9904.60.60 quota and therefore at the
ten digit statistical subdivision are provided for in subheading
2106.90.6197.
HOLDING:
The white cake glaze and white chocolate decorative shavings
are classifiable in subheading 2106.90.6197, HTSUSA, as "Food
preparations not elsewhere specified or included: Other: Other:
Other: Other: Other: Containing over 10 percent by weight of milk
solids, Other: Other: Other: Containing sugar derived from sugar
cane and/or sugar beets." The general column one rate of duty is
-4-
10 percent ad valorem. Products classifiable within subheading
2106.90.6197 are not subject to Section 22 import restrictions.
In light of the Wilsey decision rendered by the Court of
International Trade, by operation of law HRL 951488, supra, and DD
886464, supra, no longer have any effect for purposes of tariff
classification. As such, no action need be taken by this office
in this regard. We have considered your ruling request to involve
a prospective transaction in accordance with section 177.1, Customs
Regulations (19 CFR 177.1).
Sincerely,
John Durant, Director
Commercial Rulings Division