HQ 965211

August 1, 2002

CLA-2 RR:CR:GC 965211ptl

CATEGORY: Classification

TARIFF NO.: 1806.90.5500/1806.90.5900

Port Director

U.S. Customs Service

9901 Pacific Highway

Blaine, WA 98230

RE: Protest 3004-01-100051; Low Melt Chocolate Fish

Dear Port Director:

The following is our decision on Protest 3004-01-100051, against your
classification of a product described as Low Melt Chocolate Fish, under
the Harmonized Tariff Schedule of the United States (HTSUS).

**FACTS:**

The merchandise under protest is described as chocolate molded into the
shape of a ½\" fish. It is composed of the following ingredients: sugar,
52.3 percent; whey powder, 6.0 percent; alkalized cocoa powder,

9.0 percent; natural cocoa powder, 8.0 percent; Hydrogenated palm kernel
oil, 11.0 percent; coconut oil, 13.0 percent; salt, 0.2 percent, natural
flavor, trace; and lecithin, 0.5 percent. The product is imported in
bulk (35 lb. cases) and said to be used as an ingredient in ice cream,
without being further processed.

The merchandise was entered under entry number 221-xxxx142-3 on August
2, 2000, and classification was claimed to be in subheading
1806.90.9090/CA, HTSUS, which provides for chocolate and other food
preparations containing cocoa, ... other, ... other, a non-quota
provision. Customs liquidated the entry on June 1, 2001, and classified
the merchandise in subheading 1806.90.5500/CA, HTSUS, which provides for
chocolate and other food preparations containing cocoa; other: other:
other: other: articles containing over 10 percent by dry weight of sugar
described in additional U.S. note 3 to chapter 17: Described in
additional U.S. note 8 to chapter 17 and entered pursuant to its
provisions. If the quantitative limits of additional U.S. note 8 to
chapter 17 have been reached, the product would be classified in
subheading 1806.90.5900, HTSUS.

A timely protest was filed on July 10, 2001, in which protestant argued
for classification of the merchandise as entered and offered New York
Ruling (NY) A89203, dated November 27, 1996, to show Customs
classification of allegedly similar products (chocolate sprinkles) in
the desired subheading.

**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
virtually all 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]{.underline} T.D. 89-80, 54 Fed. Reg. 35127,
35128 (August 23, 1989).

The HTSUS headings under consideration are as follows:

**1806** Chocolate and other food preparations containing cocoa

\* \* \*

1806.90 Other:

> Other:
>
> Other:
>
> Other:
>
> Articles containing over 10 percent by dry weight of sugar described
> in additional U.S. note 3 to chapter 17:

1806.90.5500 Described in additional U.S. note 8 to chapter 17 and
entered pursuant to its provisions.

1806.90.5900 Other [1]{.underline}/

1806.90.9000 Other

Confectionery

1806.90.9090 Other

[1]{.underline}/ See subheadings 9904.17.49-9904.17.65.

Protestant contends that the subject chocolate fish and similar products
in different shapes are classified in subheading 1806.90.9090, HTSUS. To
support this contention, protestant refers to NY A89203, dated November
27, 1996, in which chocolate sprinkles were classified in that
subheading.

Classification of the product depends on whether it is described in
Additional U.S. Note 3 to Chapter 17, HTSUS, which provides as follows:

> 3\. For the purposes of this schedule, the term \"[articles containing
> over 10 percent by dry weight of sugar described in additional U.S.
> note 3 to chapter 17]{.underline}\" means articles containing over 10
> percent by dry weight of sugars derived from sugar cane or sugar
> beets, whether or not mixed with other ingredients, except (a)
> articles not principally of crystalline structure or not in dry
> amorphous form, the foregoing that are prepared for marketing to the
> ultimate consumer in the identical form and package in which imported;
> (b) blended syrups containing sugars derived from sugar cane or sugar
> beets, 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; (c)
> 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; or (d)
> 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, finely ground or
> masticated coconut meat or juice thereof mixed with those sugars, and
> sauces and preparations therefor.

The chocolate fish contain 52.3 percent sugar, thus satisfying the over
10 percent by dry weight sugar requirement of the U.S. Note. The quota
exceptions listed in (a) through (c) of the Note do not apply to the
merchandise because it is not prepared for marketing to the ultimate
consumer in the identical form and package in which it is imported. It
is not a blended syrup, and it is not an article containing over 65
percent by dry weight of sugar.

The relevant portion of exemption (d) to the sugar quota provides for
\"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.\"

HQ 956246, dated July 25, 1994, concerned the classification of white
cake glaze and white chocolate decorative shavings. This ruling also
discussed Customs understanding of the \"cake decorations and similar
products\" language of the quota provisions of subheading 9904.60.60
(the 1994 equivalent provision of the current Additional U.S. note 3 to
chapter 17). That ruling states:

> \"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.\"

HQ 956246 provides several criteria regarding the type and use of
products, which aids in determining whether they are eligible for quota
exemption treatment as cake decorations or similar products. Cake
decorations are used to \"coat or fill\" items. Articles such as
frostings, toppings, centers would meet this requirement. Articles which
are used as ingredients in the production of food products would not be
decorations of similar products. According to information you supplied
with the ruling request, the chocolate fish are used as ingredients in
making ice cream, not as coatings or filings.

In addition to the requirement that products be used as coatings or
fillings in order to qualify for the quota exemption, the products must
coat or fill specific types of products, namely, pastries or
confections. These are two specific classes of products which are
provided for in various headings of the HTSUS.

Heading 1905 provides for bread, pastry, cakes, biscuits and other
baker\'s wares, whether or not containing cocoa. The ENs indicate that
the following products are included in this heading: \"Pastries and
cakes, containing ingredients such as flour, starched, butter or other
fats, sugar, milk, cream, eggs, cocoa, chocolate, coffee, honey, fruit,
liqueurs, brandy, albumin, cheese, meat, fish, flavorings, yeast or
other leavening agents.\"

Heading 1704, HTSUS, provides for sugar confectionery (including white
chocolate), not containing cocoa. The ENs for that heading indicate
that: \"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.\" The exemplars listed in the ENs include such products as
gums, caramels, nougats, marzipan, etc. Heading 1704, HTSUS, does not
include confectionery containing synthetic sweetening agents instead of
sugar. Such products are classified in heading 2106, HTSUS.

Heading 1806, HTSUS, provides for Chocolate and other food preparations
containing cocoa. Note 2 to Chapter 18 states that: \"Heading 1806
includes sugar confectionery containing cocoa, and, subject to note 1 to
this chapter, other food preparations containing cocoa.\" Note 1 to
Chapter 18 states: \"This chapter does not cover the preparations of
heading 0403, 1901, 1904, 1905, 2105, 2202, 2208, 3003 or 3004.\"

The above discussion of the tariff indicates to be eligible for a quota
exclusion as a decoration of cakes and similar products, the article
must be used to coat or fill a pastry or confection of headings 1905,
1704, 1806 or 2106, HTSUS. Information supplied with the ruling request
indicates that the chocolate fish are to be used as ingredients in ice
cream.

Heading 2105, HTSUS, provides for ice cream and other edible ice,
whether or not containing cocoa. The ENs to heading 21.05, state that
\"This heading covers ice cream, which is usually prepared with a basis
of milk or cream, and other edible ice (e.g., sherbet, iced lollipops),
whether or not containing cocoa in any proportion. Ice cream with a
basis of milk or cream is a different category of product that a pastry
or confection. Note 1 to Chapter 18 excludes the preparations of heading
2105 from classification as a confectionery and other food preparations
containing cocoa under heading 1806.

The language of quota exception (d) in Additional U.S. Note 3 to Chapter
17 specifies the use of the cake decorations and similar products on
\"pastries or confections.\" It does not state \"pastries or confections
or similar products.\" Accordingly, the chocolate fish which are to be
used as ingredients in ice cream, are not used to coat or fill pastries
or confections and do not qualify for quota exemption (d) in Additional
U.S. Note 3 to Chapter 17. This decision is consistent with HQ 965474,
dated July 30, 2002. The chocolate sprinkles classified in NY A89203
were exempt from the over 10 percent sugar quota because, in addition to
their possible use on frozen products, they are traditionally used as
decorations on cakes and pastries.

**HOLDING:**

Low Melt Chocolate Fish and similar articles of different shapes, used
as ingredients in ice cream, are classified in subheading 1806.90.5500,
HTSUS, which provides for Chocolate and other food preparations
containing cocoa; other: other: other: other: articles containing over
10 percent by dry weight of sugar described in additional U.S. note 3 to
chapter 17: Described in additional U.S. note 8 to chapter 17 and
entered pursuant to its provisions. If the quantitative limits of
additional U.S. note 8 to chapter 17 have been reached, the product will
be classified in subheading 1806.90.5900, HTSUS.

The protest should be DENIED in accordance with the above holding. In
accordance with Section 3A(11)(b) of Customs Directive 099 3550‑065,
dated August 4, 1993, Subject: Revised Protest Directive, you are to
mail this decision, together with the Customs Form 19, to the protestant
no later than 60 days from the date of this letter. Any reliquidation of
the entry or entries in accordance with the decision must be
accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and
Rulings will make the decision available to Customs personnel, and to
the public on the Customs Home Page on the World Wide Web at
www.customs.gov, by means of the Freedom of Information Act, and other
methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director

Commercial Rulings Division