CLA-2 CO:R:C:F 956246 LPF

Brain J. O'Shea, Esq.
McKenna & Cuneo
1575 Eye Street, N.W.
Washington, D.C. 20005

RE: Classification of white cake glaze and white chocolate decorative shavings; Heading 2106, food preparations; Wilsey Foods Inc.; Cake decorations under subheading 9904.60.60; HRL 951488; DD 886464

Dear Mr. O'Shea:

This is in response to your letter of April 12, 1994, submitted on behalf of Albert Uster Imports, Inc., concerning the classification of white cake glaze and white chocolate decorative shavings under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise at issue, white cake glaze and white chocolate decorative shavings, was the subject of Headquarters Ruling Letter (HRL) 951488, issued December 17, 1992, and JFK Airport Area Ruling (DD) 886464, issued June 18, 1993, respectively. The white cake glaze, called "C2045 White Glaze" is to be used by bakers and confectioners to coat and decorate cakes and confections. It is composed of: sugar (46%), vegetable oil (41.7%), and skim milk powder (11.6%). The white chocolate decorative shavings are a white chocolate paste in the form of shavings, used as a decorative topping for cakes and other desserts. It will be imported in 5 kilogram cases, each made up of quarter case blocks of 1.25 kilograms. The product is ready for use and can be applied straight from the package to the dessert. It is composed of: vegetable oil (36.3%), sugar (35.1%), skim milk powder (12.2%), glucose (11.6%), sorbitol (4.7%), and lecithin (.1%).

In HRL 951488, supra, and DD 886464, supra, both products were classified in subheading 1901.90.3030 (now 1901.90.3130), HTSUSA, as food preparations of goods of headings 0401 to 0404, other, articles of milk or cream not specially provided for, dairy preparations containing over 10 percent by weight of milk solids, provided for in subheading 9904.10.60. Products classifiable

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in 1901.90.3030 were dutiable at 17.5 percent ad valorem and subject to an annual quota quantity restriction of 2,721 kilograms pursuant to subheading 9904.10.60.

For the reasons explained below, we will consider your ruling request to involve a prospective transaction in accordance with section 177.1, Customs Regulations (19 CFR 177.1).

ISSUE:

Whether the white cake glaze and white chocolate decorative shavings are classifiable within heading 1901 as food preparations of goods of headings 0401 to 0404 or within heading 2106 as food preparations not elsewhere specified of included.

LAW AND ANALYSIS:

In Wilsey Foods, Inc., v. United States, Slip Op. 94-46 (Ct. Int'l Trade, decided March 16, 1994), the court addressed the tariff classification of products called "white truffel" and "non- temp white chips" used to coat confections and/or pastries. The white truffel was composed of: vegetable oil (46%), sugar (39%), skim milk powder (15%), and lecithin, vanillin, and BHA (less than 1%). The non-temp white chips were composed of: vegetable oil (46%), sugar (45%), skim milk powder (9%), and lecithin, vanillin, and BHA (less than 1%).

Customs had classified the products in subheading 1901.90.3030, HTSUSA, as food preparations of milk or cream, subject to quota restrictions pursuant to subheading 9904.10.60. The court held that the products were appropriately classified in subheading 2106.90.6097, HTSUSA, as food preparations not elsewhere specified or included, containing sugar derived from sugar cane and/or sugar beets and not subject to quota. The court found that milk or cream was not the essential ingredient, not the ingredient of chief value, nor the preponderant ingredient in the products. In addition, evidence elicited at the court indicated that the coatings were comprised chiefly of vegetable fat and sugar and were not considered milk or cream products in the industry.

The cake glaze of HRL 951488, supra, is very similar in form, composition, and use to the Wilsey products. The shavings of DD 886464, supra, although of a somewhat different composition and form, are used in the same manner as the Wilsey products (i.e., as a cake or confectionery garnish). We also note that both the cake glaze and shavings contain less milk than the Wilsey white truffel product. Accordingly, pursuant to the Wilsey decision the instant products are not classifiable within heading 1901, as food preparations of milk or cream, but rather within heading 2106, as food preparations not elsewhere specified or included. The appropriate subheading at the six digit level is 2106.90.

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With regard to quota treatment for products classifiable within heading 2106, we note that the court did not find the Wilsey products subject to quota in accordance with the import restrictions established pursuant to Section 22 of the Agricultural Adjustment Act ("Section 22"). In particular, we note that the quota provided for in subheading 9904.60.60, covering certain products containing over 10 percent by dry weight of sugars derived from sugar cane or sugar beets, excepts, inter alia, "cake decorations and similar products to be used in the same condition as imported without any further processing other than the direct application to individual pastries or confections."

We have consulted with the Foreign Agricultural Service of the Department of Agriculture, concerning the definition of "cake decorations and similar products" as provided for in subheading 9904.60.60 and, consistent with existing Customs ruling decisions, Customs understands the cake decoration exception to mean the following:

For purposes of subheading 9904.60.60, the phrase "cake decorations and similar products to be used in the same condition as imported without any further processing other than the direct application to individual pastries or confections" means 1) products used in their imported condition to coat or fill pastries or confections, or 2) products used to coat or fill pastries or confections after a change in form (e.g., melting or heating, reduction in size), insofar as the product itself need not undergo a necessary, additional preparation, treatment, or manufacture nor a blending or combining with any ingredients, in order to become a finished product.

Because it is our understanding that the instant products are used in their imported condition, that is, straight from the package to the dessert, to coat pastries or confections, they fit within the parameters of the cake decoration exception as provided above. The products are exempt from the 9904.60.60 quota and therefore at the ten digit statistical subdivision are provided for in subheading 2106.90.6197.

HOLDING:

The white cake glaze and white chocolate decorative shavings are classifiable in subheading 2106.90.6197, HTSUSA, as "Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Containing over 10 percent by weight of milk solids, Other: Other: Other: Containing sugar derived from sugar cane and/or sugar beets." The general column one rate of duty is

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10 percent ad valorem. Products classifiable within subheading 2106.90.6197 are not subject to Section 22 import restrictions.

In light of the Wilsey decision rendered by the Court of International Trade, by operation of law HRL 951488, supra, and DD 886464, supra, no longer have any effect for purposes of tariff classification. As such, no action need be taken by this office in this regard. We have considered your ruling request to involve a prospective transaction in accordance with section 177.1, Customs Regulations (19 CFR 177.1).

Sincerely,

John Durant, Director
Commercial Rulings Division