HQ 0087767 - Request for reconsideration of New York Ruling Letter (NYRL) 850456 - United States International Trade Commision Rulings

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HQ 087767

December 18, 1990

CLA-2 CO:R:C:G 087767 RFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 1806.90.0075

Mr. David Brenneman
The Foreign Candy Company, Inc.
R.R. 1 Box 37A
Hull, Iowa 51239

RE: Request for reconsideration of New York Ruling Letter (NYRL) 850456

Dear Mr. Brenneman:

This ruling letter is in response to your request for a reconsideration of NYRL 850456, dated March 26, 1990, and concerning the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of chocolate packaged in a Christmas-motif decorated cardboard box. The ruling was issued on behalf of Choklet Schokoladen Export, which is the company from whom the product is purchased by your company for importation into the United States.

FACTS:

The product consists of pieces of chocolate packaged and imported in a seasonally decorated and constructed, disposable cardboard box. Each piece of chocolate is set behind one of twenty-four perforated window-like openings (with one window to be opened each day for the twenty-four days of Advent). The ingredients of the chocolate are set forth in NYRL 850456. The chocolate was classified under subheading 1806.90.0075, HTSUSA, in NYRL 850456. This classification is not in dispute.

In your request for reconsideration, you contend that because the chocolate and cardboard box in which the chocolate is packaged both contribute to the total cost of the product, the chocolate and the cardboard box should be given separate classifications.

ISSUE:

Whether chocolate and a decorative disposable cardboard box in which the chocolate is packaged and imported should be given separate classifications under the HTSUSA.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, then according to the remaining GRIs, taken in order.

In the instant case, the product consists of chocolate in a seasonally decorated and constructed, disposable cardboard box. Quite obviously, it is the chocolate that gives the product its commercial appeal rather than the disposable cardboard box: The chocolate is purchased for consumption as a culinary treat whereas the cardboard box--although decorated in a seasonal motif with special compartments for the pieces of chocolate--is merely a package for the chocolate. In fact, this package is no different from the many other seasonally decorated and constructed packages for chocolate and other confections (e.g., Christmas tree-shaped cookie and candy boxes and St. Valentine's Day heart-shaped candy boxes) as well as other, decorative and artistic packages for confections and other products. Pursuant to GRI 1, goods are to be classified under the heading that most specifically describes them. The instant product is most specifically described by heading 1806--which provides for chocolate of a kind like that packaged in the cardboard box.

It should be noted that there exists no authority for classifying chocolate and the cardboard box in which the chocolate is packaged separately when the chocolate is imported in the cardboard box. Under the GRIs, goods and their packages are ultimately classified under a single heading no matter how packaged. The only exceptions for classifying goods separately from the "containers" in which they are packaged exists under GRI 5. GRI 5 (a) states that:

Camera cases, musical instrument cases, gun cases, drawing instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and entered with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character.

The Explanatory Notes to GRI 5 (a) list as examples of containers entered with the articles for which they are intended jewelry boxes and cases, electric shaver cases, binocular cases, telescope cases, musical instrument cases, boxes, and bags, and gun cases. On the other hand, the Explanatory Notes list as examples of containers not covered by GRI 5 (a) a silver candy containing tea or an ornamental ceramic bowl containing sweets. A disposable cardboard box containing chocolate, no matter how decorated or constructed, clearly is not within the ambit of this rule.

The second part to GRI 5 is part (b). Part (b) states that:

Subject to the provisions of Rule 5 (a) above, packing materials and packing containers entered with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision does not apply when such packing materials or packing containers are clearly suitable for repetitive use.

As examples of packing materials and packing containers suitable for repetitive use, the Explanatory Notes to GRI 5 (b) list "certain metal drums or containers of iron or steel for compressed or [liquid] gas." A disposable cardboard box, no matter how decorated or constructed, is (1) "of a kind normally used for packing" chocolate and is (2) obviously not of the type of packing materials or packing containers contemplated by GRI 5 (b) as being suitable for repetitive use.

HOLDING:

The above-described product is properly classified under subheading 1806.90.0075, HTSUSA, which provides for chocolate and other food preparations containing cocoa, other, other, other, put up for retail sale, chocolate confectionery. The general rate of duty is 7 percent ad valorem.

In light of the above, NYRL 850456 is hereby affirmed.

Sincerely,

John Durant, Director
Commercial Rulings Division

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