HQ 083901: Classification of miniature milk chocolate bears produced in Canada.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                       HQ 083901

                                     May 12, 1989


            CLA-2 CO:R:C:G  083901 JGH

            CATEGORY:  Classification

            TARIFF NO.: 1806.90.0090, 9904.10.66

            R. Christian Berg, Esq.
            Cole, Corette, Abrutyn
            Suite 900
            1110 Vermont Avenue, N.W.
            Washington, D.C.  20006

            RE:  Classification of miniature milk chocolate bears produced
                 in Canada.

            Dear Mr. Berg:

                 Your letter of March 10, 1989, concerns the classification
            of miniature molded milk chocolate bears under the Harmonized
            Tariff Schedule of the United States (HTSUS).

            FACTS:

                 The merchandise is said to be composed of milk chocolate
            and is in the form of miniature molded bears, which, judging
            from the samples submitted, are about the size of chocolate
            chips.  They would be imported in boxed bags, with each bag
            holding five or ten pounds, and each box containing four to six
            bags.  The miniature forms would be used as decorations for, or
            ingredients in, ice cream creations.

            ISSUE:

                 Whether the molded figures are classifiable under the
            provision for other preparations in blocks or slabs weighing
            more than 2 kg or in liquid, paste, powder, granular or other
            bulk form in containers or immediate packings, of a content
            exceeding 2 kg, containing not over 5.5 percent by weight of
            butterfat, in subheading 1806.20.4060, HTSUS, and in addition
            subject to the quota limitation of subheading 9904.10.66,
            9904.10.63, or 9904.60.60, HTSUS.  In the alternative, it is
            claimed that the miniature chocolate forms are classifiable as
            other chocolate in subheading 1806.90.0090, HTSUS.
















                                         - 2 -

            LAW AND ANALYSIS:

                 Heading 1806.20 applies to other chocolate preparations in
            block or slab, or powders, paste, liquid, granular, or other
            bulk forms.  Although the merchandise is shipped in bulk, it is
            not a bulk form but a finished article, rather than a material
            form to be made into a finished article.  Therefore, subheading
            1806.20 does not apply.  Subheadings 1806.31.00 and 1806.32.00
            would fail for the same reason:  they cover blocks, slabs, or
            bars and not the finished product.

                 Subheading 1806.90 covers other chocolate and food
            preparations containing cocoa.  The Explanatory Notes to
            heading 1806 state that the chocolate covered in the heading
            may be put up not only in slabs and bars, but also such forms
            as tablets and pastilles.

                 The quota provisions of subheading 9904.10.66 apply to
            chocolate in the various subheadings, including 1806.90, HTSUS.
            Assuming that the merchandise does not contain over 5.5 percent
            butterfat by weight, this quota could apply to this product.
            However, it is claimed that these miniature bears would fall
            into the exception in this quota for articles for consumption
            at retail as candy or confection.

                 A confection or confectionary has been defined by the
            court as sweet tasting articles which are eaten as such for
            their taste and flavor without further preparation and which
            are usually sold at confectionary outlets.  Leaf Brands, Inc.
            v. United States, 70 Cust. Ct 66, C.D. 4409 (1973).  There is
            no indication that this product is intended to be sold as a
            confection or candy as imported; it is intended to be used as
            an ingredient in or as a decoration on ice cream, and not a
            confection put up for retail sale as imported.  The definition
            of confectionary under the HTSUS is similar.

                 Since the miniature milk chocolate bears are subject to
            the quota restrictions in subheading 9904.10.66 if containing
            5.5 percent butterfat or less by weight, or subheading
            9904.10.63 if containing over 5.5 percent butterfat by weight,
            the sugar quota in subheading 9904.60.60 would not apply.





















                                         - 3 -

            HOLDING:

                 Miniature molded chocolate bears are classifiable as other
            chocolate in subheading 1806.90.0090, HTSUS, dutiable at the
            rate of 7 percent ad valorem.  They are also subject to the
            quota restraints of subheading 9904.10.66 or 9904.10.63, HTSUS,
            depending on butterfat content.

                                        Sincerely,




                                        John Durant, Director
                                        Commercial Rulings Division









































            hurley library 083901
            6cc:  Area Director, New York Seaport
            JGHurley:jaj:5/2/89