June 25, 2008 CBP Bulletin Notice on Classification of Marbits
In the June 25, 2008 issue of the U.S. Customs and Border Protection Bulletin (Vol. 42, No. 27), CBP published a notice proposing to revoke three classification rulings and revoke a treatment as follows:
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Proposed revocation of rulings; proposed revocation of treatment. CBP is proposing to revoke three rulings on the classification of "marbits" mini marshmallows. CBP is also proposing to revoke any treatment it has previously accorded to substantially identical transactions.
CBP states that any party who has received a contrary written ruling or decision on the merchandise that is subject to the proposed revocations, or any party involved with a substantially identical transaction, should advise CBP by July 25, 2008, the date that written comments on the proposed rulings are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.
"Marbits." The merchandise is described as "dried marshmallow confections" used as ingredients in retail-packed cereal products. They are imported into the U.S. in bulk. They are in the form of dry, brittle, multi-colored pieces in a variety of small shapes, and consist of sugar, corn syrup, cornstarch, dextrose, gelatin, flavor, and sodium hexamet.
CBP is proposing to issue HQ H01478, HQ H027857, and HQ H027858 in order to revoke NY N009017, NY H86740 and NY J80284 and reclassify the "marbits" under HTS 1704.90.3590, as "sugar confectionery (including white chocolate), not containing cocoa: other: confections or sweetmeats ready for consumption" rather than under HTS 2106.90.9400, as "food preparations not elsewhere specified or included."
CBP proposes this change as a correction based on legal precedents including the definition of "confectionery" as established by the Court of International Trade (CIT) in Leaf Brands, Inc. v. U.S., 70 Cust. Ct. 66 (1973), and several prior rulings on marshmallows (see bulletin for details). CBP now proposes that the merchandise does not meet the terms of HTS heading 2106 because it is "elsewhere specified or included" as sugar confectionery of HTS heading 1704. CBP has previously established that marshmallows meet the definition of confectionery because they are eaten for their sweet taste without further preparation and are usually sold at confectionery outlets.
In this instance, it is undisputed that "marbits" are small marshmallows (they are composed of the standard ingredients of marshmallows, specifically, sugar, water, corn syrup, dextrose, corn starch, gelatin, artificial flavoring, and sodium hexamet, and have a similar consistency). Because "marbits" are marshmallows, CBP proposes that they belong to the same class or kind as the goods classified as confectioneries.
CBP now proposes that by application of GRI 1, "marbits" should be classified under HTS 1704.90.3590, as: "Sugar confectionery (including white chocolate), not containing cocoa: Other: Confections or sweetmeats ready for consumption: Other: Other: Other."
Proposed: 1704.90.3590, 5.6%; current: 2106.90.9400, 28.8 cents/kilo 8.5%
June 25, 2008 CBP Bulletin (Vol. 42, No. 27) available athttp://www.cbp.gov/xp/cgov/trade/legal/bulletins_decisions/bulletins_2008/