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HQ 083901


May 12, 1989

CLA-2 CO:R:C:G 083901 JGH

CATEGORY: CLASSIFICATION

TARIFF NO.: 1806.90.0090, 9904.10.66

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.

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.

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

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