HQ 955580 - Application for Further Review of Protest No. 3801-93- 101396, Tariff Classification of Rainbow Sprinkles. - United States International Trade Commision Rulings

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HQ 955580

May 26, 1994

CLA-2 CO:R:C:F 955580 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.6097

District Director
U.S. Customs Service
477 Michigan Avenue
Detroit, Michigan 48226

RE: Application for Further Review of Protest No. 3801-93- 101396, Tariff Classification of Rainbow Sprinkles.

Dear Sir:

This is a decision on a protest filed April 22, 1993, against your decision in the classification of merchandise liquidated on March 12, 1993.

FACTS:

The product that is the subject of this protest is known as "sprinkles." The merchandise is identified as "rainbow sprinkles, " short, thin, round filaments in a variety of colors. The ingredient composition of the sprinkles varies according to customer specifications. In all cases, however, the principal ingredients are icing sugar (from 68 to 85 percent) and hydrogenated vegetable oil (7.5 to 13 percent). Other ingredients that may be present include glucose, starch lecithin, gum arabic, confectioner's shellac, and colors. This product was imported in bulk and varying sizes of 40, 25, 10 and 7 pound boxes, and entered under subheading 1704.90.2010, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as sugar confectionery for retail sale.

At liquidation, Customs reclassified the merchandise under subheading 2106.90.6097 (currently 2106.90.6997), HTSUSA, as a food preparation not elsewhere specified or included, containing sugar derived from sugar cane and/or sugar beets.

The protestent seeks reclassification of the goods to subheading 1704.90.2010, HTSUSA, as a "Sugar confectionery (including white chocolate), not containing cocoa: Other: Confections or sweetmeats ready for consumption: Other: Other."

ISSUE:

What is the proper classification under the HTSUSA of the subject merchandise, rainbow sprinkles?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI's). As stated in GRI 1, the classification is determined first in accordance with the terms of the headings which must be read in conjunction with the relative section and chapter notes. If GRI 1 fails to classify the goods and if the headings and legal notes do not otherwise require, the remaining GRI's are applied in their appropriate order. The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN's), facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

The protestent has asserted that the product should be classified in subheading 1704.90, HTSUSA, as a sugar confectionery "ready for consumption." In Leaf Brands Inc. v. United States, 70 Cust. Ct. 66, CD 4409 (1973), the court stated: "it follows that a criterion for classification of an article as a confectionery is its use (which may be evidenced by its manner of sale) as a confection rather than its shape or texture." The court further stated that the term confectionery "applies to many kinds of sweet tasting articles which are eaten as such for the taste and flavor without further preparation and which are usually sold in confectionery outlets."

The principles set forth in Leaf Brands , supra, have been applied in a Headquarters ruling under the HTSUSA. Specifically, Headquarters ruling 085206, dated February 23, 1990, stated Customs's position that "confections ready for consumption" means that "a product, as it is marketed, and in its condition as imported, must be ready for immediate consumption at retail as a confectionery, and is not, for example, merchandise which will be used as an ingredient in the baking industry."

The rainbow sprinkles now in question, are clearly an ingredient used as a topping on various products, and in the baking industry. Furthermore, the protestent has indicated that the product is packed in bulk, for end use by bakers, distributors and wholesalers. Thus, the rainbow sprinkles are not products ready for immediate consumption at retail as a confectionery, and cannot be classified under subheading 1704.90, HTSUSA.

Inasmuch as this product is not covered by any other heading of the Nomenclature, the proper classification of the rainbow sprinkles is in subheading 2106.90.6097 (currently 2106.90.6997), HTSUSA, as a food preparation not elsewhere specified or included.

HOLDING:

The protest should be denied. A copy of this decision should be attached to the Form 19 to be returned to the protestant.

The product, rainbow sprinkles, was properly classified in 1992 under subheading 2106.90.6097, HTSUSA, a provision for "Food preparations not elsewhere specified or included" and dutiable at 6 percent ad valorem as a product of Canada.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing this decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS, and to the public via the Diskette Subscription Service, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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