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HQ 966723




December 10, 2004

CLA-2 RR:CR:GC 966723ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 1806.90.4900

Mr. Richard R. Wohlrab
LE Coppersmith, Inc.
AIOP Bldg. A3W
145 Hook Creek Blvd.
Valley Stream, NY 11581

RE: Classification of Small Chocolate Lentils, NY I86136 revoked

Dear Mr. Wohlrab:

New York Ruling (NY) I86136, was issued to you on September 25, 2002, by the Customs and Border Protection (CBP) National Commodity Specialist Division, in New York, concerning the classification of small chocolate lentils under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). That ruling classified the lentils in subheading 1806.90.9090, HTSUSA, which provides for chocolate and other food preparations containing cocoa: other: other: other: other. Since that ruling was issued, CBP has determined that the classification provided therein is incorrect. This ruling provides the correct classification for the chocolate lentils and the reasoning supporting the classification.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NY I86136 was published on November 3, 2004, in the Customs Bulletin, Volume 38, Number 45. No comments were received in response to that notice.

FACTS:

Information provided indicates that the goods referred to as "Small Chocolate Lentils" are small lentil-shaped articles with chocolate centers which are coated with a hard glaze of different colors. The product will be used by bakeries as decorations on cakes and pastries, and inside cookies. The product's ingredients are said to be: sugar, 68 percent; cocoa butter, 10 percent; cocoa liquor, 9 percent; whole milk powder, 9 percent; whey powder, 3 percent. A variety of additional ingredients are said to make up a total of approximately 1 percent of the product. The product will be packaged in 37 lb. cartons for importation.

ISSUE:

What is the classification of small chocolate lentils to be used as decorations on cakes and pastries and inside cookies?

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 most 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 subheadings under consideration are as follows:

1806 Chocolate and other food preparations containing cocoa:

1806.90 Other:
Other:
Other:
Other:
Articles containing over 65 percent by dry weight of sugar described in additional U.S. note 2 to chapter 17:

1806.90.4500 Described in additional U.S. note 7 to chapter 17 and entered pursuant to its provisions

1806.90.4900 Other 2/ .

1806.90.90 Other

1806.90.9090 Other

2/ See subheadings 9904.17.17-9904.17.48.

The articles being classified are small edible chocolate objects which are to be used in bakeries as decorations on cakes and pastries or ingredients in cookies. From information provided regarding the product's ingredients, we know the goods are said to contain 68 percent sugar. With this amount of sugar in the product, we must determine whether it is described by Additional U.S. Note 2 to Chapter 17.

Additional U.S. Note 2 to Chapter 17, reads as follows:

2. For the purposes of this schedule, the term "articles containing over 65 percent by dry weight of sugar described in additional U.S. note 2 to chapter 17" means 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.

Additional U.S. Note 2, Section lV, HTSUS, defines the terms of Additional U.S. Notes 2 and 3, Chapter 17, HTSUS, as follows:

For the purposes of this section, unless the context otherwise requires— (a) the term "percent by dry weight" means the sugar content as a percentage of the total solids in the product; (b) the term "capable of being further processed or mixed with similar or other ingredients" means that the imported product is in such condition or container as to be subject to any additional preparation, treatment or manufacture or to be blended or combined with any additional ingredient, including water or any other liquid, other than processing or mixing with other ingredients performed by the ultimate consumer prior to consumption of the product; (c) the term "prepared for marketing to the ultimate consumer in the identical form and package in which imported" means that the product is imported in packaging of such sizes and labeling as to be readily identifiable as being intended for retail sale to the ultimate consumer without any alteration in the form of the product or its packaging; and (d) the term "ultimate consumer" does not include institutions such as hospitals, prisons and military establishments or food service establishments such as restaurants, hotels, bars or bakeries.

In HQ 960694, dated March 20, 1998, CBP (then "Customs") discussed the classification of white dipping icing, donut glaze and chocolate dipping icing. The products all contained over 65 percent by dry weight sugar, and were imported in ready-to-use condition. The products were used, as imported, to frost or glaze donuts or other bakery goods by dipping the baked goods in the icing or glaze.

In summarizing its decision that the icing and glazing products were covered by the description of Additional U.S. Note 2, HQ 960694 stated: "The toppings and the 'untopped' donuts, pastries, or cakes are components combined to make finished goods. Therefore, we find that the toppings are capable of being combined with additional ingredients, to wit, donuts, pastries, or cakes."

The chocolate lentils classified in NY I86136 are decorative components that will be combined by commercial bakers with other ingredients (cakes, pastries and cookie dough). Accordingly, they are goods described by Additional U.S. Note 2 to Chapter 17. As such they should not have been classified in subheading 1806.90.9090, HTSUSA, as other products other than those described by the Additional U.S. Note. The chocolate lentils are properly classified in subheading 1806.90.4900, HTSUSA, the subheading for chocolate goods described by Additional U.S. Note 2 to Chapter 17.

HOLDING:

Small chocolate lentils, containing 68 percent sugar, that are used by bakeries as decorations on cakes, pastries and inside cookies are classified in subheading 1806.90.4900, HTSUSA, which provides for: Chocolate and other food preparations containing cocoa: Other: Other: Other: Other: Articles containing over 65 percent by dry weight of sugar described in additional U.S. note 2 to chapter 17: Other. The duty rate will be 37.2 cents per kilogram plus 6 percent ad valorem. In addition, products classified in subheading 1806.90.4900, HTSUSA, will be subject to additional duties based on their value, as described in subheadings 9904.17.17 to 9904.17.48, HTSUS. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

EFFECT ON OTHER RULINGS:

NY I86136, dated September 25, 2002, is revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director

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