CLA-2 OT:RR:CTF:TCM H240495 TNA
Darlene Miniaci, Senior import Specialist
Carmichael International Service
20 W. Lincoln Ave., Suite 300
Valley Stream, NY 11580
RE: Modification of NY N232564; Classification of “Maccha” confectionary
Dear Ms. Miniaci:
This letter is in reference to New York Ruling Letter (“NY”) N232564, dated September 19, 2012, issued to Carmichael International Service on behalf of its client, Royce Confect USA, Inc. (“Royce”), concerning the tariff classification of “Maccha” confectionary. There, U.S. Customs and Border Protection (“CBP”) classified five different Royce brand chocolates in subheading 1806.90.90, Harmonized Tariff Schedule of the United States (“HTSUS”), as “Chocolate and other food preparations containing cocoa: Other: Other: Other: Other: Other.” We have reviewed NY N232564 and found it to be partly in error. For the reasons set forth below, we hereby modify NY N232564 with respect to the product “Maccha” (Item Number 12089).
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke NY N232564 was published on September 4, 2013, in Volume 47, Number 37, of the Customs Bulletin. CBP received no comments in response to this notice.
FACTS:
The subject merchandise is Item Number 12089, also called “Maccha.” It is described as a four inch square, scored block of candy. Product specifications submitted by Royce show that the subject merchandise consists of 31.5% fresh cream, 23.4% cocoa butter, 19.9% sugar, 10.1% skim milk powder, 7.7% whole milk powder, 2.6% powdered green tea, 2.6% lactose, 1.9% brandy, and less than 1% each of emulsifier and flavor. The subject merchandise is wrapped in a plastic tray and packaged in a cardboard box; the item’s net weight is 4.4 ounces. It is imported packaged for retail sale.
In NY N232564, CBP classified Item Number 12089 in subheading 1806.90.90, HTSUS, as: “Chocolate and other food preparations containing cocoa: Other: Other: Other: Other: Other.”
ISSUE:
Whether the subject merchandise is classified in heading 1704, HTSSU, as “sugar confectionery (including white chocolate), not containing cocoa” or in heading 1806, HTSUS, as “chocolate and other food preparations containing cocoa”?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall 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 HTSUS provisions under consideration are as follows:
1704 Sugar confectionery (including white chocolate), not containing cocoa:
1704.90 Other:
Confections or sweetmeats ready for consumption:
Other:
1704.90.35 Other
1806 Chocolate and other food preparations containing cocoa:
1806.90 Other:
Other:
Other:
Other:
1806.90.90 Other
Note 1 to Chapter 17, HTSUS, provides that:
This chapter does not cover:
(a) Sugar confectionery containing cocoa (heading 1806)
Note 2 to Chapter 18, HTSUS, provides that:
Heading 1806 includes sugar confectionery containing cocoa, and, subject to note 1 to this chapter, other food preparations containing cocoa.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).
The EN to heading 1704, HTSUS, provides, in pertinent part:
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.
It includes, inter alia:…
(6) White chocolate composed of sugar, cocoa butter, milk powder and flavouring agents, but not containing more than mere traces of cocoa (cocoa butter is not regarded as cocoa)…
The heading excludes:…
(b) Sugar preparations containing cocoa (heading 18.06). (For this
purpose cocoa butter is not regarded as cocoa.)
The EN to heading 1806, HTSUS, provides, in pertinent part:
Chocolate is composed essentially of cocoa paste and sugar or other sweetening matter, usually with the addition of flavouring and cocoa butter; in some cases, cocoa powder and vegetable oil may be substituted for cocoa paste. Milk, coffee, hazelnuts, almonds, orange-peel, etc., are sometimes also added….
The heading also includes all sugar confectionery containing cocoa in any proportion (including chocolate nougat), sweetened cocoa powder, chocolate powder, chocolate spreads, and, in general, all food preparations containing cocoa (other than those excluded in the General Explanatory Note to this Chapter)….
Heading 1806, HTSUS, requires that merchandise classified therein contain chocolate or cocoa. You contend that the subject merchandise contains no chocolate or cocoa and have submitted product specifications showing its ingredients.
Note 1 to Chapter 17, HTSUS, excludes sugar confectionery containing cocoa. See Note 1 to Chapter 17, HTSUS. Products of heading 1806, HTSUS, are sugar confectionery containing cocoa, and other food preparations containing cocoa. See Note 2 to Chapter 18, HTSUS; heading 1806, HTSUS; EN 18.06. Furthermore, chocolate of this heading consists of cocoa paste and sugar or other sweetening matter, usually with the addition of flavoring and cocoa butter. It may also contain items such as milk, coffee, hazelnuts, etc. See EN 18.06. Sugar confectionary containing cocoa is also classified in this heading, even if the percentage of cocoa contained therein is small. See EN 18.06.
Here, the subject merchandise contains no cocoa. Its largest ingredients, by percentage, are fresh cream, cocoa butter, sugar, and skim milk powder. Cocoa butter is not considered cocoa. See EN 17.04. Heading 1704, HTSUS, provides for “sugar confectionary (including white chocolate), not containing cocoa.” It includes products made of sugar that are marketed in a solid or semi-solid form, are suitable for immediate consumption and are called sweetmeats, confectionery or candies. See EN 17.04. This heading also includes such products as white chocolate that are composed of sugar, cocoa butter, milk powder and flavoring agents, but do not contain more than mere traces of cocoa. See EN 17.04. Products can contain cocoa butter and remain classified in this heading, as cocoa butter is not considered cocoa. See EN 17.04.
In the present case, sugar is one of the largest ingredients of the subject merchandise. It also contains many of the same ingredients as white chocolate, such as sugar, cocoa butter, milk powder and flavoring agents. It is imported as an edible sweet, and is sold at retail as imported. As such, we find that the subject merchandise is described by the terms of heading 1704, HTSUS, and will be classified there.
HOLDING:
Under the authority of GRI 1, Item Number 12089, also called “Maccha,” is classified in heading 1704, HTSUS. It is specifically classified in subheading 1704.90.35, HTSUS, which provides for “Sugar confectionery (including white chocolate), not containing cocoa: Other: Other: Other.” The column one general rate of duty is 5.6% ad valorem.
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 internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N232564, dated September 19, 2012, is MODIFIED.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division