Classification of dry powdered cocoa preparation

HQ 088825 August 26, 1991 CLA-2 CO:R:C:F 088825 EAB CATEGORY: Classification TARIFF NO.: 1806.20.8080; 1806.90.0090 Leonard M. Fertman, Esquire 2049 Century Park East, Suite 1800 Los Angeles, CA 90067 Re: Classification of dry powdered cocoa preparation Dear Mr. Fertman: This is in reply to your February 26, 1991 letter on behalf of Consolidated Flavor Corporation, in which you request a binding ruling on the tariff classification of a dry powdered cocoa preparation under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample of the product was submitted. FACTS: The submitted sample does not appear to be in a container identical to or representative of the container/s in which it will be imported. The product "will be used as an additive for any number of commercial foods for human consumption." It is a dry, powdered mixture composed of 50 percent natural cocoa, 49 percent carrageenan (an extract of red algae, principally Irish moss, used as a suspending agent, clarifying agent or stabilizer in foods or beverages), 0.5 percent starch and 0.5 percent salt. ISSUE: What is the proper tariff classification under the HTSUSA of dry powdered cocoa preparation to be used as an additive for commercial foods for human consumption? LAW AND ANALYSIS: Merchandise imported into the U.S. is classified under the HTSUSA. The tariff classification of merchandise under the HTSUSA is governed by the principles set forth in the General Rules of Interpretation (GRIs). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's taken in order. Whereas Note 2 to Chapter 18 provides that heading 1806 includes other food preparations containing cocoa, it is clear that the subject cocoa powder mix is properly classifiable under heading 1806, HTSUSA. If the product is imported in containers or immediate packings of a content exceeding 2 kilograms, it may be classified under subheading 1806.20.8080, HTSUSA, which provides for choco- late and other food preparations containing cocoa, in powder or granular form in containers or immediate packings of a content exceeding 2 kilograms, other, other; if the product is imported in containers or immediate packings of a content not exceeding 2 kilograms, then it may be classified under subheading 1806.90.0090, HTSUSA. HOLDING: Dry powdered cocoa preparation to be used as an additive for commercial foods for human consumption is properly classifiable under subheading 1806.20.8080, HTSUSA, which provides for choco- late and other food preparations containing cocoa, in powder or granular form in containers or immediate packings of a content exceeding 2 kilograms, other, other, and dutiable at the general column one rate of 10 percent ad valorem. If the product is imported in containers or immediate packings of a content not exceeding 2 kilograms, then it is properly classifiable under subheading 1806.90.0090, HTSUSA, and dutiable at the general column one rate of 7 percent ad valorem. Sincerely, John Durant, Director Commercial Rulings Division