HQ 0085387 - Reconsideration of NYRL 839590 - United States International Trade Commision Rulings

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HQ 085387

October 31, 1989

CLA-2:CO:R:C:G 085387 SR

CATEGORY: CLASSIFICATION

TARIFF NO.: 1901.90.3040

Mr. John S. Anderson
Sonnenberg, Anderson, O'Donnell & Rodriguez 200 West Adams Street
Suite 2625
Chicago, IL 60606

RE: Reconsideration of NYRL 839590

Dear Mr. Anderson:

This is in reference to your letter dated August 7, 1989, requesting reconsideration of New York Ruling Letter (NYRL) 839390, dated April 27, 1989, concerning powdered tropical drink mixes from Columbia.

FACTS:

The merchandise at issue consists of powdered tropical drink mixes called El Rodeo. They were classified in NYRL 839390, dated April 27, 1989, under subheading 1901.90.3040, HTSUSA, as food preparations of goods of headings 0401 to 0404, not elsewhere specified or included, articles of milk or cream not specially provided for, other. The importer claims that they should be classified under subheading 2106.90.5050, HTSUSA, as other food preparations not elsewhere specified or included.

The following facts are provided by the importer:

The tropical drink mixes will be available in five flavors- blackberry, banana-orange, passion fruit, caruba fruit, and guanabana fruit. The ingredients for each flavor by weight are
as follows:

1. Banana-Orange
Sugar 48%
Powdered Milk 48%
Other Ingredients 4%

2. Passion Fruit
Sugar 46%
Powdered Milk 50%
Other Ingredients 4%

3. Caruba Fruit
Sugar 56%
Powdered Milk 41%
Other Ingredients 3%

4. Guanabana Fruit
Sugar 45%
Powdered Milk 51%
Other Ingredients 4%

5. Blackberry Fruit
Sugar 59%
Powdered Milk 38%
Other Ingredients 3%

The "Other Ingredients" contained in each of the tropical drink mix flavors are: Vitamin A, Vitamin C, Carboxymethylcellulose, Citric Acid, Calcium Carbonate, Phosphorous, Vitamin D, Artificial Colors, Artificial Flavors.

The drinks are imported and sold in foil pouches. They are prepared by adding water and blending. Each pouch produces four glasses of fruit drink.

ISSUE:

What is the classification of the merchandise at issue?

LAW AND ANALYSIS:

The importer claims that the drink should be classified as other food preparations. This classification was reached by an essential character analysis of the ingredients. The NY classification of subheading 1901.90.3040, HTSUSA, was determined by GRI 1. Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI), taken in order. GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided such headings or notes do not otherwise require, according to [the remaining GRI'S taken in order]."

Subheading 1901.90.30, HTSUSA, provides for food preparations of goods of headings 0401 to 0404, not containing cocoa power or containing cocoa powder in a proportion by weight of less than 10 percent, not elsewhere specified or included, other, articles of milk not specially provided for, other. Subheading 0402.10.00, HTSUSA, provides for milk, concentrated or containing added sugar or other sweetening matter, in powder, of a fat content, by weight, exceeding 1.5 percent. The sweetened milk ingredient in the powdered drink mix does qualify for this provision.

The importer claims that the merchandise at issue cannot be classified under Subheading 1901.90.3040, HTSUSA, because of an exception in the Explanatory Notes to heading 0402, HTSUSA. The Explanatory Notes constitute the official interpretation of the tariff at the international level. The Explanatory Notes state that heading 0402, HTSUSA, does not cover beverages consisting of milk flavored with cocoa or other substances. This does not affect the milk at issue. Heading 1901, HTSUSA, provides for food preparations of goods of 0401 to 0404. The powered drink mix is composed of sweetened milk of heading 0402, HTSUSA; however, because of the addition of the flavorings and other ingredients it is not classified under the milk provision. The Explanatory Notes to heading 1901, HTSUSA, state the following:

The preparations of this heading may be distinguished from the products of headings 04.01 to 04.04 in that they contain, in addition to natural milk constituents, other ingredients not permitted in the products of those earlier headings. Thus heading 19.01 included, for example:

(1) Preparations in powder or liquid form used as infant food or for dietetic purposes and consisting of milk to which secondary ingredients have been added.

Under GRI 1 the merchandise at issue must be classified under subheading 1901.90.3040, HTSUSA.

HOLDING:

The powdered drink mix at issue is classifiable under subheading 1901.90.3040, HTSUSA, which provides for food preparations of goods of headings 0401 to 0404, other articles of milk not specially provided for, other. The rate of duty is 17.5 percent ad valorem. This product will also be subject to the quota restrictions of subheading 9904.10.60, HTSUSA. NYRL 839590, dated April 27, 1989, is hereby affirmed.

Sincerely,

John Durant, Director

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