CLA-2 RR:CR:GC 965211ptl
Port Director
U.S. Customs Service
9901 Pacific Highway
Blaine, WA 98230
RE: Protest 3004-01-100051; Low Melt Chocolate Fish
Dear Port Director:
The following is our decision on Protest 3004-01-100051, against your classification of a product described as Low Melt Chocolate Fish, under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise under protest is described as chocolate molded into the shape of a ½" fish. It is composed of the following ingredients: sugar, 52.3 percent; whey powder, 6.0 percent; alkalized cocoa powder,
9.0 percent; natural cocoa powder, 8.0 percent; Hydrogenated palm kernel oil, 11.0 percent; coconut oil, 13.0 percent; salt, 0.2 percent, natural flavor, trace; and lecithin, 0.5 percent. The product is imported in bulk (35 lb. cases) and said to be used as an ingredient in ice cream, without being further processed.
The merchandise was entered under entry number 221-xxxx142-3 on August 2, 2000, and classification was claimed to be in subheading 1806.90.9090/CA, HTSUS, which provides for chocolate and other food preparations containing cocoa, … other, … other, a non-quota provision. Customs liquidated the entry on June 1, 2001, and classified the merchandise in subheading 1806.90.5500/CA, HTSUS, which provides for chocolate and other food preparations containing cocoa; other: other: other: other: articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17: Described in additional U.S. note 8 to chapter 17 and entered pursuant to its provisions. If the quantitative limits of additional U.S. note 8 to chapter 17 have been reached, the product would be classified in subheading 1806.90.5900, HTSUS.
A timely protest was filed on July 10, 2001, in which protestant argued for classification of the merchandise as entered and offered New York Ruling (NY) A89203, dated November 27, 1996, to show Customs classification of allegedly similar products (chocolate sprinkles) in the desired subheading.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied in order.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS headings under consideration are as follows:
1806 Chocolate and other food preparations containing cocoa
* * *
1806.90 Other:
Other:
Other:
Other:
Articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17:
1806.90.5500 Described in additional U.S. note 8 to chapter 17 and entered pursuant to its provisions.
1806.90.5900 Other 1/
1806.90.9000 Other
Confectionery
1806.90.9090 Other
1/ See subheadings 9904.17.49-9904.17.65.
Protestant contends that the subject chocolate fish and similar products in different shapes are classified in subheading 1806.90.9090, HTSUS. To support this contention, protestant refers to NY A89203, dated November 27, 1996, in which chocolate sprinkles were classified in that subheading.
Classification of the product depends on whether it is described in Additional U.S. Note 3 to Chapter 17, HTSUS, which provides as follows:
3. For the purposes of this schedule, the term "articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17" means articles containing over 10 percent by dry weight of sugars derived from sugar cane or sugar beets, whether or not mixed with other ingredients, except (a) articles not principally of crystalline structure or not in dry amorphous form, the foregoing that are prepared for marketing to the ultimate consumer in the identical form and package in which imported; (b) blended syrups containing sugars derived from sugar cane or sugar beets, capable of being further processed or mixed with similar or other ingredients, and not prepared for marketing to the ultimate consumer in the identical form and package in which imported; (c) articles containing over 65 percent by dry weight of sugars derived from sugar cane or sugar beets, whether or not mixed with other ingredients, capable of being further processed or mixed with similar or other ingredients, and not prepared for marketing to the ultimate consumer in the identical form and package in which imported; or (d) 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, finely ground or masticated coconut meat or juice thereof mixed with those sugars, and sauces and preparations therefor.
The chocolate fish contain 52.3 percent sugar, thus satisfying the over 10 percent by dry weight sugar requirement of the U.S. Note. The quota exceptions listed in (a) through (c) of the Note do not apply to the merchandise because it is not prepared for marketing to the ultimate consumer in the identical form and package in which it is imported. It is not a blended syrup, and it is not an article containing over 65 percent by dry weight of sugar.
The relevant portion of exemption (d) to the sugar quota provides for "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."
HQ 956246, dated July 25, 1994, concerned the classification of white cake glaze and white chocolate decorative shavings. This ruling also discussed Customs understanding of the "cake decorations and similar products" language of the quota provisions of subheading 9904.60.60 (the 1994 equivalent provision of the current Additional U.S. note 3 to chapter 17). That ruling states:
"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."
HQ 956246 provides several criteria regarding the type and use of products, which aids in determining whether they are eligible for quota exemption treatment as cake decorations or similar products. Cake decorations are used to "coat or fill" items. Articles such as frostings, toppings, centers would meet this requirement. Articles which are used as ingredients in the production of food products would not be decorations of similar products. According to information you supplied with the ruling request, the chocolate fish are used as ingredients in making ice cream, not as coatings or filings.
In addition to the requirement that products be used as coatings or fillings in order to qualify for the quota exemption, the products must coat or fill specific types of products, namely, pastries or confections. These are two specific classes of products which are provided for in various headings of the HTSUS.
Heading 1905 provides for bread, pastry, cakes, biscuits and other baker's wares, whether or not containing cocoa. The ENs indicate that the following products are included in this heading: "Pastries and cakes, containing ingredients such as flour, starched, butter or other fats, sugar, milk, cream, eggs, cocoa, chocolate, coffee, honey, fruit, liqueurs, brandy, albumin, cheese, meat, fish, flavorings, yeast or other leavening agents."
Heading 1704, HTSUS, provides for sugar confectionery (including white chocolate), not containing cocoa. The ENs for that heading indicate that: "This heading covers most of the sugar preparations which are marketed in a solid or semi-solid form, generally suitable for immediate consumption and collectively referred to as sweetmeats, confectionery or candies." The exemplars listed in the ENs include such products as gums, caramels, nougats, marzipan, etc. Heading 1704, HTSUS, does not include confectionery containing synthetic sweetening agents instead of sugar. Such products are classified in heading 2106, HTSUS.
Heading 1806, HTSUS, provides for Chocolate and other food preparations containing cocoa. Note 2 to Chapter 18 states that: "Heading 1806 includes sugar confectionery containing cocoa, and, subject to note 1 to this chapter, other food preparations containing cocoa." Note 1 to Chapter 18 states: "This chapter does not cover the preparations of heading 0403, 1901, 1904, 1905, 2105, 2202, 2208, 3003 or 3004."
The above discussion of the tariff indicates to be eligible for a quota exclusion as a decoration of cakes and similar products, the article must be used to coat or fill a pastry or confection of headings 1905, 1704, 1806 or 2106, HTSUS. Information supplied with the ruling request indicates that the chocolate fish are to be used as ingredients in ice cream.
Heading 2105, HTSUS, provides for ice cream and other edible ice, whether or not containing cocoa. The ENs to heading 21.05, state that "This heading covers ice cream, which is usually prepared with a basis of milk or cream, and other edible ice (e.g., sherbet, iced lollipops), whether or not containing cocoa in any proportion. Ice cream with a basis of milk or cream is a different category of product that a pastry or confection. Note 1 to Chapter 18 excludes the preparations of heading 2105 from classification as a confectionery and other food preparations containing cocoa under heading 1806.
The language of quota exception (d) in Additional U.S. Note 3 to Chapter 17 specifies the use of the cake decorations and similar products on "pastries or confections." It does not state "pastries or confections or similar products." Accordingly, the chocolate fish which are to be used as ingredients in ice cream, are not used to coat or fill pastries or confections and do not qualify for quota exemption (d) in Additional U.S. Note 3 to Chapter 17. This decision is consistent with HQ 965474, dated July 30, 2002. The chocolate sprinkles classified in NY A89203 were exempt from the over 10 percent sugar quota because, in addition to their possible use on frozen products, they are traditionally used as decorations on cakes and pastries.
HOLDING:
Low Melt Chocolate Fish and similar articles of different shapes, used as ingredients in ice cream, are classified in subheading 1806.90.5500, HTSUS, which provides for Chocolate and other food preparations containing cocoa; other: other: other: other: articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17: Described in additional U.S. note 8 to chapter 17 and entered pursuant to its provisions. If the quantitative limits of additional U.S. note 8 to chapter 17 have been reached, the product will be classified in subheading 1806.90.5900, HTSUS.
The protest should be DENIED in accordance with the above holding. In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division