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HQ 087203


August 29, 1990

CLA-2 CO:R:C:G 087203 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3302.10.2000

Mr. L. L. Barnhart
Sr. Transportation Specialist
Export/Import Services
Hercules Plaza
Wilmington, DE 19894

RE: Apple Aroma, pineapple aroma and natural orange aroma, also referred to as essences or essence oils

Dear Mr. Barnhart:

This is in further reference to your letters of March 27, 1990, to our New York Seaport Area Office regarding the above products and other products on which that office has issued New York Ruling Letters (NYRL) 850922 and 850925, dated May 16, 1990. Your request, as to the 3 items referenced above have been referred to this office for reply. Our response will be limited thereto. You submitted samples of the subject products which were destroyed in laboratory analysis procedures.

FACTS:

The products are liquids derived from the manufacture process of citrus fruits and fruit peels from Brazil. They are used as raw materials and additives to make flavors and flavoring extracts for food and fragrances. Each substance is an aqueous solution containing odoriferous substances and alcohol.

ISSUE:

What is the proper classification of each substance?

LAW AND ANALYSIS:

The classification of merchandise under the Harmonized Tariff Schedule of the Unites States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUSA, states in part that for "legal purposes, classification shall be determined according to the terms of the heading and any relative section or chapter notes..."

In reviewing the facts in this case, we have considered the application of Headings 3301 and 3302, Harmonized Tariff Schedule of the United States (HTSUS). We noted that Heading 3301 covers the volatile oils, the essential or pure oils, obtained from citrus fruits and other plants by steam distillation or other methods. These oils serve as raw materials in the perfumery, food and other industries. Heading 3301 also covers resinoids in various media, terpenic by-products of the deterpenation of essential oils as well as aqueous distillation and aqueous solutions of essential oils. While it is clear that the products in question, which are individually composed of apple, pineapple or natural orange essence, also referred to as aroma, are not essential oils because of the presence of alcohol and water, nor are they resinoids or terpenic by-products of essential oils, there is a question as to whether they might qualify as aqueous distillates or aqueous solutions of essential oils.

The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN's) constitute the official interpretation of the Harmonized Tariff System at the international level and are useful in ascertaining the classification of merchandise under the HTSUS. Explanatory Note 33.01(D) indicates that aqueous distillates are obtained as the aqueous portions of the distillates resulting when essential oils are extracted from plants by steam distillation. It also indicates that after the essential oils have been decanted, the aqueous distillates still retain a fragrance due to the presence of small quantities of essential oils. It further indicates that these distillates contain small quantities of alcohol. To make a determination as to whether the products could be considered aqueous distillates, we referred to the flow chart provided by the company which describes the process by which the products under consideration were produced. Based on information you telephonically provided to us on August 8, 1990, which you indicated was based on advice received from Hercules laboratory personnel, the products under consideration fit into one of the - 3 -
boxes at the bottom left of the flow chart labelled water-phase essence and oil- phase essence. In other words each product is the essence or aroma of a particular fruit.

In following the flow chart we understand that these products are derived from a process which initially separates the juice into concentrated juice and water and oil vapor. The next step in the process separates the water and oil vapors into water and into essence oils, as labelled on the flow chart. Based on our discussion with laboratory personnel at Customs Headquarters, we understand that the box labelled water on the flow chart is the aqueous distillation of this separation process and that the box labelled essence oils represents the essential oils, the pure oil. The flow chart shows that the products under consideration are produced from the essential oils. Based on our understanding of the production process, as represented by the flow chart and amplified by the above EN, the products under consideration are not aqueous distillates or aqueous solutions of essential oils. We, therefore, have concluded that Heading 3301, HTSUS, does not cover the products under consideration.

We next considered Heading 3302, which covers mixtures of odoriferous substances and mixtures (including alcoholic solutions) with a basis of one or more of these substances, of a kind used as a raw material in industry. Explanatory Note 33.02 specifies that varieties of specified mixtures are covered by Heading 3302 provided they are of a kind used as raw materials in the perfumery, food or drink industries or other industries. The mixtures specified include mixtures of essential oils, resinoids, synthetic aromatics, two or more odoriferous substances, and mixtures with one or more of the above substances provided that that substance forms the basis of the mixture. In this regard we note that the products are each composed of at least 3 elements, i.e., essence, water and alcohol. We also note that the products are used as raw materials and additives to make flavors and flavoring extracts for food and fragrances. We, therefore, believe that they can be properly included under Heading 3302 and under a particular subheading thereof based on their alcoholic content.

HOLDING:

The apple, pineapple and natural orange aromas which were the subject of your inquiry are classifiable under subheading 3302.10.2000 which provides for mixtures of odoriferous - 4 -
substances and mixtures with a basis of one or more of these substances, of a kind used as raw materials in industry, containing not over 20 percent of alcohol by weight. Items classified under this subheading are subject to a general duty rate of 6.6 cents per kilogram plus 3 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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