HQ 087767: Request for reconsideration of New York Ruling Letter (NYRL) 850456

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 087767

                        December 18, 1990

CLA-2 CO:R:C:G 087767 RFC

CATEGORY: Classification

TARIFF NO.: 1806.90.0075

Mr. David Brenneman
The Foreign Candy Company, Inc.
R.R. 1 Box 37A
Hull, Iowa 51239

RE: Request for reconsideration of New York Ruling Letter (NYRL)
    850456

Dear Mr. Brenneman:

     This ruling letter is in response to your request for a
reconsideration of NYRL 850456, dated March 26, 1990, and
concerning the tariff classification under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) of chocolate
packaged in a Christmas-motif decorated cardboard box.  The
ruling was issued on behalf of Choklet Schokoladen Export, which
is the company from whom the product is purchased by your company
for importation into the United States.

FACTS:

     The product consists of pieces of chocolate packaged and
imported in a seasonally decorated and constructed, disposable
cardboard box.  Each piece of chocolate is set behind one of
twenty-four perforated window-like openings (with one window to
be opened each day for the twenty-four days of Advent).  The
ingredients of the chocolate are set forth in NYRL 850456.  The
chocolate was classified under subheading 1806.90.0075, HTSUSA,
in NYRL 850456.  This classification is not in dispute.

     In your request for reconsideration, you contend that
because the chocolate and cardboard box in which the chocolate is
packaged both contribute to the total cost of the product, the
chocolate and the cardboard box should be given separate
classifications.

ISSUE:

     Whether chocolate and a decorative disposable cardboard box
in which the chocolate is packaged and imported should be given
separate classifications under the HTSUSA.

LAW AND ANALYSIS:

     Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRIs).  GRI 1 requires
that classification be determined first according to the terms of
the headings of the tariff and any relative section or chapter
notes and, unless otherwise required, then according to the
remaining GRIs, taken in order.

     In the instant case, the product consists of chocolate in a
seasonally decorated and constructed, disposable cardboard box.
Quite obviously, it is the chocolate that gives the product its
commercial appeal rather than the disposable cardboard box: The
chocolate is purchased for consumption as a culinary treat
whereas the cardboard box--although decorated in a seasonal
motif with special compartments for the pieces of chocolate--is
merely a package for the chocolate.  In fact, this package is no
different from the many other seasonally decorated and
constructed packages for chocolate and other confections (e.g.,
Christmas tree-shaped cookie and candy boxes and St. Valentine's
Day heart-shaped candy boxes) as well as other, decorative and
artistic packages for confections and other products.  Pursuant
to GRI 1, goods are to be classified under the heading that most
specifically describes them.  The instant product is most
specifically described by heading 1806--which provides for
chocolate of a kind like that packaged in the cardboard box.

     It should be noted that there exists no authority for
classifying chocolate and the cardboard box in which the
chocolate is packaged separately when the chocolate is imported
in the cardboard box.  Under the GRIs, goods and their packages
are ultimately classified under a single heading no matter how
packaged.  The only exceptions for classifying goods separately
from the "containers" in which they are packaged exists under
GRI 5.  GRI 5 (a) states that:

     Camera cases, musical instrument cases, gun cases, drawing
     instrument cases, necklace cases and similar containers,
     specially shaped or fitted to contain a specific article or
     set of articles, suitable for long-term use and entered
     with the articles for which they are intended, shall be
     classified with such articles when of a kind normally sold
     therewith.  This rule does not, however, apply to containers
     which give the whole its essential character.

The Explanatory Notes to GRI 5 (a) list as examples of
containers entered with the articles for which they are intended
jewelry boxes and cases, electric shaver cases, binocular cases,
telescope cases, musical instrument cases, boxes, and bags, and
gun cases.  On the other hand, the Explanatory Notes list as
examples of containers not covered by GRI 5 (a) a silver candy
containing tea or an ornamental ceramic bowl containing sweets.
A disposable cardboard box containing chocolate, no matter how
decorated or constructed, clearly is not within the ambit of this
rule.

     The second part to GRI 5 is part (b).  Part (b) states
that:

     Subject to the provisions of Rule 5 (a) above, packing
     materials and packing containers entered with the goods
     therein shall be classified with the goods if they are of a
     kind normally used for packing such goods.  However, this
     provision does not apply when such packing materials or
     packing containers are clearly suitable for repetitive use.

As examples of packing materials and packing containers suitable
for repetitive use, the Explanatory Notes to GRI 5 (b) list
"certain metal drums or containers of iron or steel for
compressed or [liquid] gas."  A disposable cardboard box, no
matter how decorated or constructed, is (1) "of a kind normally
used for packing" chocolate and is (2) obviously not of the type
of packing materials or packing containers contemplated by GRI 5
(b) as being suitable for repetitive use.

HOLDING:

     The above-described product is properly classified under
subheading 1806.90.0075, HTSUSA, which provides for chocolate and
other food preparations containing cocoa, other, other, other,
put up for retail sale, chocolate confectionery.  The general
rate of duty is 7 percent ad valorem.

     In light of the above, NYRL 850456 is hereby affirmed.

                              Sincerely,



                              John Durant, Director
                              Commercial Rulings Division