H317110

 HQ H317110 March 21, 2022 OT:RR:CTF:FTM H317110 TJS CATEGORY: Classification TARIFF NO.: 1905.31.00; 1905.32.00 Mr. Phillip Allmendinger Griesson-deBeukelaer GmbH & Co. August-Horch-Strabe 23 Polch 56751 Germany RE: Revocation of NY N303994; Tariff classification of a chocolate-covered cookie assortment from Germany Dear Mr. Allmendinger: This is in reference to New York Ruling Letter (“NY”) N303994, dated April 24, 2019, concerning the tariff classification of a chocolate-covered cookie assortment under the Harmonized Tariff Schedule of the United States (“HTSUS”). In that ruling, U.S. Customs and Border Protection (“CBP”) classified the cookie assortment at issue under subheading 1905.90.1050, HTSUS, which provides for “Bread, pastry, cakes, biscuits and other bakers’ wares, whether or not containing cocoa; communion wafers, empty capsules of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products: Other: Bread, pastry, cakes, biscuits and similar baked products, and puddings, whether or not containing chocolate, fruit, nuts or confectionery: Other: Pastries, cakes and similar sweet baked products; puddings.” Upon additional review, we have found the classification of this product under subheading 1905.90.1050, HTSUS, to be incorrect. For the reasons set forth below, we hereby revoke NY N303994. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on February 16, 2022, in Volume 56, Number 6, of the Customs Bulletin. No comments were received in response to this notice. FACTS: NY N303994 described the cookie assortment at issue as follows: The product is a chocolate covered cookie assortment said to contain approximately 37 percent sugar, 21 percent wheat flour, 11 percent chocolate, 10 percent cocoa butter, 8 percent vegetable shortening, 5 percent skim milk, 2 percent butterfat, and 6 percent total including trace amounts of vegetable oils, butter, eggs, almonds, salt lemon, caramel, sugar, and citric acid among others. The assortment consists of fifteen different varieties of decorated chocolate covered cookies shaped in circles, squares, sticks and a heart. The product is said to be packaged for retail sale in tins printed and embossed as a seasonal item suitable for gifting, weighing 1 kilogram per tin, net packed. According to the product information submitted with the ruling request, including a photo of the assortment, the cookies are organized by variety in a plastic tray with a plastic film in the tin box. The product information also describes three of the fifteen cookies as wafers with cream fillings. Specifically, the “Coca Wafer with Dark Chocolate” is described as a wafer with cocoa cream filling, covered with dark chocolate, and decor of milk chocolate. The “Cocoa Wafer with Milk Chocolate” is described as a wafer with cocoa cream filling, covered with milk chocolate, and decor of white chocolate. The “Dark Chocolate Cream Roll” is described as a wrapped crispy light brown wafer with brown filling and a rough surface. According to the product specification, the target water content in the finished product is 2% with a maximum of 4%. ISSUE: What is the tariff classification of the chocolate-covered cookie assortment? LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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 GRI 2 through 6 may then be applied in order. GRI 6 provides that for legal purposes, classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes, and mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. GRI 6 thus incorporates GRIs 1 through 5 in classifying goods at the subheading level. The HTSUS headings under consideration are as follows: 1905 Bread, pastry, cakes, biscuits and other bakers’ wares, whether or not containing cocoa; communion wafers, empty capsules of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products: Sweet biscuits; waffles and wafers: 1905.31.00: Sweet biscuits… 1905.32.00 Waffles and wafers… 1905.90: Other: 1905.90.10: Bread, pastry, cakes, biscuits and similar baked products, and puddings, whether or not containing chocolate, fruit, nuts or confectionery… * * * GRI 3(a) and (b) provide as follows: When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. * * * The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989). The EN to heading 1905, HTSUS, provides in pertinent part as follows: The heading includes the following products: … (8) Biscuits. These are usually made from flour and fat to which may have been added sugar or certain of the substances mentioned in Item (10) below. They are baked for a long time to improve the keeping qualities and are generally put up in closed packages. There are various types of biscuits including: Plain biscuits containing little or no sweetening matter but a relatively high proportion of fat; this type includes cream crackers and water biscuits. Sweet biscuits, which are fine bakers’ wares with long-keeping qualities and a base of flour, sugar or other sweetening matter and fat (these ingredients constituting at least 50% of the product by weight), whether or not containing added salt, almonds, hazelnuts, flavouring, chocolate, coffee, etc. The water content of the finished product must be 12 % or less by weight and the maximum fat content 35% by weight (fillings and coatings are not to be taken into consideration in determining these contents). Commercial biscuits are not usually filled, but they may sometimes contain a solid or other filling (sugar, vegetable fat, chocolate, etc.). They are almost always industrially manufactured products. Savoury and salted biscuits, which usually have a low sucrose content. (9) Waffles and wafers, which are light fine bakers’ wares baked between patterned metal plates. This category also includes thin waffle products, which may be rolled, waffles consisting of a tasty filling sandwiched between two or more layers of thin waffl

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI).  GRI 1 provides that the classification of goods shall be determined 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 GRI 2 through 6 may then be applied in order.  GRI 6 provides that for legal purposes, classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes, and mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. GRI 6 thus incorporates GRIs 1 through 5 in classifying goods at the subheading level. The HTSUS headings under consideration are as follows:1905 Bread, pastry, cakes, biscuits and other bakers’ wares, whether or not containing cocoa; communion wafers, empty capsules of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products: Sweet biscuits; waffles and wafers:1905.31.00: Sweet biscuits…1905.32.00 Waffles and wafers…1905.90: Other:1905.90.10: Bread, pastry, cakes, biscuits and similar baked products, and puddings, whether or not containing chocolate, fruit, nuts or confectionery…* * *GRI 3(a) and (b) provide as follows:When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation