HQ 087262: Classification of chocolate shavings from West Germany

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 087262

                                     July 31,1990

            CLA-2 CO:R:C:G 087262 JGH

            CATEGORY: Classification

            TARIFF NO.: 1806.90.0020

            Mr. J. T. Littlewood
            Mrs. Smith's Frozen Foods Co.
            PO Box 298
            Pottstown, Pa 19464

            RE: Classification of chocolate shavings from West Germany

            Dear Mr. Littlewood:

                 This is in reference to your letter of May 24, 1990,
            concerning the tariff status of chocolate shavings, a
            product of West Germany.

            FACTS:

                 You state that approximately four years ago the
            company introduced a high quality dessert product, French Silk
            Chocolate Pie.  While the chocolate used in the filling was
            said to be domestically obtained, the chocolate shavings used
            to decorate the top of the pie were imported from West Germany.

                 Until recently, you add, the shavings were classified
            under the Harmonized Tariff Schedules of the United States
            (HTSUS), as food preparations in subheading 2106.90.6097,
            HTSUS, and not subject to quota.  However, you note that
            Customs at the port where the entries were filed changed the
            classification to subheading 1806.90.0020, HTSUS, which had
            the effect of subjecting entries to a quota with no allowance
            for chocolate from Germany.

                 The shavings are said to be composed of:

                    Ingredient                Percent

                     Cocoa Mass                9.49
                     Cocoa butter             16.6
                     Full Milk Powder         18.6
                     Sugar                    53.9
                     Milk Fat                  4.5


                 You assert that since, in your opinion, there is no
            domestic chocolate of the high quality which you feel is
            necessary for this product, you are required to import the
            product.

            ISSUE:

                 Classification of chocolate shavings under the HTSUS.

            LAW AND ANALYSIS:

                 In contrast to the prior law, the Tariff Schedules of
            the United States (TSUS), under which to be classified as a
            cocoa product the article had to contain at least 10 percent
            cocoa liquor, the HTSUS chapter covering cocoa and cocoa
            preparations, Chapter 18, includes not only cocoa in all forms,
            cocoa butter, fat and oil but also preparations containing
            cocoa in any proportions (with exceptions not here applicable).
            Subheading 1806.90, HTSUS, covers food preparations containing
            cocoa.  Products classifiable in this provision are also
            subject to quota restraints.  Subheading 9904.10.66, HTSUS,
            is a quota provision which applies to articles containing
            chocolate classifiable in subheading 1806.90, HTSUS, containing
            5.5 percent or less by weight of butterfat, with no quota
            allowance for chocolate preparations from West Germany.

                 Since these chocolate shavings have a butterfat content of
            4.5 percent and are a product of West Germany, they are subject
            to this quota prohibition.

                Your request for a delay in the effective date of the
            change in classification of the chocolate shavings is being
            currently considered and will be addressed in a seperate
            letter.

            HOLDING:

                 Chocolate shavings from West Germany containing 4.5
            percent butterfat are classifiable in subheading 1806.90.0020,
            HTSUS, and subject to quota prohibition in subheading
            9904.10.66, HTSUS.

                                        Sincerely,




                                        John Durant, Director
                                        Commercial Rulings Division