CLA-2 OT:RR:CTF:TCM H047555 SK
TARIFF NO.’s: 1806.90.9019; 1806.31.0049; 1704.90.3550
Port Director
United States Customs and Border Protection
Office of Field Operations
Port of Laredo
P.O. Box 3130
Laredo, Texas 78044-3130
RE: Internal Advice Request No. 09/001; Classification of Sugar and Chocolate Confectionaries.
Dear Port Director:
This ruling is in response to a request for Internal Advice initiated by J.O. Alvarez, Inc., CHB, on behalf of their client, Barcel, S.A. de C.V. At issue is the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of four types of confectionary food commodities.
FACTS:
The merchandise at issue consists of four types of confectionary food products:
Paleta Payaso – A chocolate covered marshmallow lollipop with gummies. The marshmallow is prepared by adding 2 principal ingredients: gelatin solution and marshmallow syrup. Both are mixed and aired to obtain marshmallow. The marshmallow is coated with a chocolate flavor cover. The coating is colded, decorated with 3 jelly gums, and sold as a lollipop.
Bubulubu – A chocolate covered marshmallow bar filled with strawberry jelly. The ingredients are mixed and cooked in order to obtain strawberry jelly and marshmallow separately. Both substances are deposited into a cornstarch mold to solidify. The formed pieces are unmolded and coated with a chocolate flavor cover.
Paleton – A chocolate covered marshmallow lollipop. The marshmallow is prepared by adding 2 principal ingredients: gelatin solution and marshmallow syrup. Both are mixed and aired to obtain marshmallow. The marshmallow is coated with a chocolate flavor cover and sold as a lollipop.
Paleton en Tira de Cajeta – A goat milk/caramel lollipop.
The subject merchandise is currently imported from Mexico through the port of Pharr, Texas (2305). Samples of the goods were sent to Customs and Border Protection (CBP), along with ingredient breakdown and manufacturing process descriptions.
ISSUE:
What is the proper classification of the confectionary products at issue?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the general Rules of Interpretation (GRI). GRI 1 provides that classification will be determined 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 GRI may then be applied.
The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the HTS at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to follow, whenever possible, the terms of the EN’s when interpreting the HTSUSA. See T.D. 89-80, 54 FR 35127, 35128 (August 23, 1989).
Exporter/importer Barcel suggests that the correct classification for the three chocolate covered products (Paleta Payaso, Bubulubu, and Paleton) is subheading 1806.90.9019, HTSUS, which provides for, “[C]hocolate and other food preparations containing cocoa: Other: Other: Other… Confectionary: Other.” Barcel also maintains that the classification for the caramel lollipop (Paleton en Tira de Cajeta) is 1901.90.3200, which provides for “[M]alt extract;…; food preparations of goods of headings 0401 to 0404, not containing cocoa powder in a preparation by weight of less than 5 percent, not elsewhere specified or included; Other: Cajeta not made from cow’s milk.”
The CBP Port of Entry located at Pharr, Texas (Pharr) reviewed and considered Barcel’s position. The Port of Pharr disagrees with Barcel’s classification of the subject commodities and, citing New York Ruling Letter (NY) J86452, dated July 20, 2003, maintains that all three of the chocolate products were entered correctly under subheading 1806.31.0049, HTSUS, which provides for “[C]hocolate and other food preparations containing cocoa: Other, in blocks, slabs or bars: Filled … Confectionary: Other.” Citing NY 886135, dated May 25, 1993, the Port of Pharr also suggests the proper classification of the caramel lollipop (Paleton en Tira de Cajeta) is subheading 1704.90.3550, HTSUS, which provides for “[S]ugar confectionary (including white chocolate) not containing cocoa … Other: Confections or sweetmeats ready for consumption … Other … put up for retail sale.”
Upon review of the subject merchandise, this office is of the view that subheading 1806.31.0049, HTSUS, is inapplicable to the products identified as Paleta Payaso and Paleton inasmuch as they are sold as lollipops and subheading 1806.31, HTSUS, describes merchandise that is in block, slab or bar form. In NY L87746, dated October 13, 2005, a chocolate-covered hard candy lollipop was classified under subheading 1806.90.9019, HTSUS, as “[C]hocolate and other food preparations containing cocoa: Other: Other: Other… Confectionary: Other.” CBP Headquarters concurs with Barcel’s suggested classification of the Paleta Payaso and the Paleton under this same tariff provision.
CBP Headquarters concurs with the Port of Pharr’s determination that the Bubulubu confection, which is sold in bar form and not as a lollipop, is classifiable under subheading 1806.31.0049, HTSUS, which provides for “[C]hocolate and other food preparations containing cocoa: Other, in blocks, slabs or bars: Filled … Confectionary: Other.” See NY ruling letter L88075, dated November 2, 2005, in which a similar product consisting of a rectangular confection filled with chocolate and enrobed in a milk chocolate coating was classified in this tariff provision.
CBP Headquarters also agrees with the Port of Pharr’s assessment that the goat milk/caramel lollipop identified as the Paleton en Tira de Cajeta is classifiable within subheading 1704.90.3550, HTSUS, which provides for “[S]ugar confectionary (including white chocolate) not containing cocoa … Other: Confections or sweetmeats ready for consumption … Other … put up for retail sale.” The Paleton en Tira de Cajeta is not classifiable in subheading 1901.90.3200, HTSUS, as asserted by the importer, notwithstanding the fact that “cajeta not made from cow’s milk” is specified at the subheading level of that tariff provision. In this regard, the superior qualifying language of heading 1901, HTSUS, which limits the provision to goods “not elsewhere specified or included,” is determinative of classification for this product as the lollipop is more specifically classifiable as a sugar confectionary of heading 1704, HTSUS. See also Headquarters Ruling Letters H014783, H027858 and H027857 (all dated 9/8/2008).
HOLDING:
The subject confection products are classifiable as follows:
The confection product identified as Paleta Payaso is classifiable within subheading 1806.90.9019, HTSUS, which provides for, “[C]hocolate and other food preparations containing cocoa: Other: Other: Other… Confectionary: Other.”
The confection product identified as Paleton is classifiable within subheading 1806.90.9019, HTSUS, which provides for, “[C]hocolate and other food preparations containing cocoa: Other: Other: Other… Confectionary: Other.”
The confection product identified as Bubulubu is classifiable within subheading 1806.31.0049, HTSUS, which provides for “[C]hocolate and other food preparations containing cocoa: Other, in blocks, slabs or bars: Filled … Confectionary: Other.”
The confection product identified as Paleton en Tira de Cajeta is classifiable within subheading 1704.90.3550, HTSUS, which provides for “[S]ugar confectionary (including white chocolate) not containing cocoa … Other: Confections or sweetmeats ready for consumption … Other … put up for retail sale.”
You are to mail this decision to the internal advice requester no later than sixty days from the date of the decision. At that time, Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial Trade and Facilitation Division