CLA-2 RR:CR:GC 960395 RTR
Mr. Henry Kaplan
De Choix Specialty Foods Co.
58-25 52nd Avenue
Woodside, New York 11377-7402
RE: NY B82002 affirmed; white chocolate; butterfat; dairy
products; heading 9904; Presidential Proclamation 6151
Dear Mr. Kaplan:
This is in reference to your letter of April 1, 1997,
requesting reconsideration of New York Ruling Letter (NY) B82002,
dated March 6, 1997, concerning the classification of white
chocolate bars from Belgium.
In NY B82002, Customs classified three varieties of white
chocolate bars in subheadings 1704.90.54, Harmonized Tariff
Schedule of the United States (HTSUS), and 1704.90.58, HTSUS, as
Sugar confectionary (including white chocolate), not containing
cocoa: Other: Other: Other: Dairy products described in
additional U.S. note 1 to chapter 4: Described in additional
U.S. note 10 to chapter 4 and entered pursuant to its provisions;
Other. You claim that the merchandise is classifiable in
subheading 1704.90.3550 (formerly 1704.90.3505), HTSUS, or,
alternatively, in subheading 1704.90.3590 (formerly
1704.90.3510), HTSUS, the provisions for "confection ready for
consumption" and "dairy products described under additional U.S.
note 10 to chapter 4 and entered pursuant to its provisions;
Other," respectively.
FACTS:
The merchandise consists of eleven pound bars of white
chocolate, imported from Belgium for sale in gourmet and
specialty food shops. The three products at issue are identified
as AMA-W, W5, and W11NV. Their ingredients are described as
follows:
Ingredients
AMA-W
W5
W11NV
cocoa butter
28%
31.6%
30.8%
full cream
milk powder
30.8%
17.8%
15%
sugar
40.8%
46.6%
49.4%
lecithin
traces
traces
traces
vanillin
traces
traces
traces
butterfat
8.3%
4.8%
4%
whey powder
X
3.7%
4.4%
ISSUES:
(1) Whether white chocolate in eleven pound blocks is a
"confection ready for consumption" in the meaning of subheading
1704.90, HTSUS. (2) Whether the merchandise is subject to the
provisions for dairy products under additional U.S. note 1 to
chapter 4, HTSUS.
LAW AND ANALYSIS:
The provisions under consideration are as follows:
1704 Sugar confectionary (including white chocolate), not
containing cocoa:
1704.90 Other:
Confections or sweetmeats ready for consumption:
Other
1704.90.35 Other
Put up for retail sale
1704.90.3550 Other
1704.90.3590 Other:
Dairy products described in
described in additional U.S.
note 1 to chapter 4:
1704.90.54 Described in additional
U.S. note 10 to chapter
4 and entered pursuant
to its provisions
1704.90.58 Other 1.
* * * * *
9904 Dairy products described in additional U.S. note 1 to
chapter 4, provided for in subheadings... 1704.90.58...:
If entered during the effective period of safeguards
based upon quantity announced by the Secretary of
Agriculture:
9904.04.89 Provided for in subheading 1704.90.58.
Merchandise is classifiable under the HTSUS in accordance
with the General Rules of Interpretation (GRIs). GRI 1 states in
part that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
The Harmonized Commodity Description and Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the Harmonized System. While not legally binding on the
contracting parties, and therefore not dispositive, the ENs
provide a commentary on the scope of each heading of the
Harmonized System and are thus useful in ascertaining the
classification of merchandise under the System. Customs believes
the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg.
35127, 35128 (Aug. 23, 1989).
I. Tariff Classification of White Chocolate
In a letter dated April 1, 1997, you indicate that the
merchandise is ready for retail consumption as is, or is suitable
for sale to bakers and pastry chefs for further melting into
chocolate coating, fillings, or for white mousse as in desserts.
For this reason, you claim that it is classified in either
subheading 1704.90.3505, HTSUS, or subheading 1704.90.3510,
HTSUS, which provide for "confections or sweetmeats ready for
consumption." (Emphasis added).
In HQ 085206, dated February 23, 1990, which also dealt with
the tariff classification of white chocolate from Belgium,
Customs took the position that the phrase "confections ready for
consumption" meant that merchandise as marketed, and in its
condition as imported, must be ready for immediate consumption at
retail as a confectionary. "Immediate consumption" is not, for
example, merchandise which will be utilized as an ingredient in
the baking industry. See also HQ 083700, dated June 7, 1989, HQ
072051, dated January 28, 1983, HQ 072073, dated April 28,1983,
HQ 076100, dated August 29, 1985 which held that white chocolate
was not a confectionary ready for consumption when in a form used
by bakers or pastry chefs for melting, coating, filling, etc.
Also, Leaf Brands, Inc. v. United States, 70 Cust. Ct. 66
(1973), although decided under the Tariff Schedule of the United
States (the precursor to the HTSUS), is instructive as to the
classification of confections under the HTSUS. There the court
held that the issue of whether an article is a confectionary is
determined by its chief use, not by the fact that it is edible.
"Chief use," was determined by the manner of sale, character and
design of a particular good. The court also cited several cases
which held in part that confectionaries are usually sold at
confectionary stores, and found persuasive evidence that the
merchandise was distributed through candy brokers.
The merchandise which is the subject of NY B82002 is
imported in eleven pound blocks. There is no evidence that it is
distributed through candy brokers or that it is sold at
confectionary stores. Rather, by your own admission, the
merchandise is suitable "for sale to bakers and pastry chefs for
further melting into chocolate coating, fillings, or for white
mousse as in desserts." Irrespective of the fact that it can be
consumed in its imported form, it is clear that commercial
purveyors of white chocolate, such as a bakeries, are more likely
to purchase white chocolate in such large quantity than are
individuals. Under HQ 085206, Leaf Brands and related cases, the
merchandise is not a "confection ready for consumption." Rather,
it is provided for in subheading 1704.90.5800, HTSUS, as "sugar
confectionary (including white chocolate)... , products described
in described in additional U.S. note 1 to chapter 4:...Other 1."
II. U.S. Legal Note Covering Dairy Products
Additional U.S. note 1 to chapter 4, HTSUS, lists three
provisions for dairy products: (1) Malted milk, and articles of
mil k or cream (subheading 9904.10.60, HTSUS); (2) Articles
containing over 5.5 percent by weight of butterfat (subheading
9904.10.81, HTSUS), and (3) Articles with dried milk, whey or
but termilk, which contain not over 5.5 percent by weight of
but terfat and contain over 16 percent milk solids by weight
(subheading 9904.10.75, HTSUS). You claim that your merchandise
is not subject any of these because the language of additional
U.S. note 1 to chapter 4 specifically excludes white chocolate
fro m consideration as a "dairy product." It provides:
(f)or purposes of this schedule, the term dairy
products described in additional U.S. note 1 to chapter
4' means any of the following goods: malted milk, and
articles of milk or cream (except (a) white chocolate
and (b) inedible dried milk powders certified to be
used for calibrating infrared milk analyzers); articles
containing over 5.5 percent by weight of butterfat
which are suitable for use as ingredients in the
commercial production of edible articles (except
articles within the scope of other import quotas
provided for in addition U.S. notes 2 and 3 to chapter
18); or, dried milk, whey or buttermilk (of the type
provided for in subheadings 0402.10, 0402.21, 0403.90,
0404.10) which contains not over 5.5 percent by weight
of butterfat and which is mixed with other ingredients,
including but not limited to sugar, if such mixtures
contain over 16 percent milk solids by weight, are
capable of being further processed or mixed with
similar or other ingredients and are not prepared for
marketing to the ultimate consumer in the identical
form and package in which imported.
As stated above, the white chocolate bars are classified in
subheading 1704.90.58, HTSUS. Footnote 1 to that subheading
directs us to consult subheading 9904.04.89, HTSUS, which covers
"(d)airy products described in additional U.S. note 1 to chapter
4, provided for in subheadings... 1704.90.58... If entered
during the effective period of safeguards based upon quantity
announced by the Secretary of Agriculture: Provided for in
subheading 1704.90.58." As subheading 9904.04.89, HTSUS,
specifies merchandise of subheading 1704.90.58, HTSUS, which
describes the white chocolate currently at issue, we conclude
that it is subject to the following dairy provisions:
Merchandise
AMA-W
W5
W11NV
malted milk and articles
of milk or cream
exempt
exempt
exempt
articles containing over
5.5 percent by weight of
butterfat
subject to
provision
exempt
exempt
articles with dried milk,
whey or buttermilk, which
contain not over 5.5
percent by weight of
butterfat and contain
over 16 percent milk
solids by weight
exempt
subject to
provision
subject to
provision
Accordingly, we affirm NY B82002.
HOLDING:
Under the authority of GRI 1 and Additional U.S. Rule of
Interpretation 1, HTSUS, white chocolate from Belgium in eleven
pound bars is classified in heading subheading 1704.90.58, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division