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HQ 960015




July 14, 1997

CLA-2 RR:TC:FC 960015K

CATEGORY: CLASSIFICATION

TARIFF NO.: 2103.90.80

Maureen D. Pearson, Esq.
Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661-3693

RE: Ruling Request of October 30, 1996, For "Seasoning Blend 817"

Dear Ms. Pearson:

Your request of October 30, 1996, on behalf of Kerry Ingredients International, for a classification ruling concerning a product described as "Seasoning Blend 817" was referred to our office for a direct response by the Director, National Commodity Specialist Division, New York Seaport. The office of the Director advised that the merchandise as described in your request is similar to the merchandise as described in NYRL 878986, dated December 1, 1992, which held that the merchandise was classified in subheading 1901.90.80, Harmonized Tariff Schedule of the United States (1992), which provided for other food preparations of goods of headings 0401 to 0404, not elsewhere specified or included. NYRL 878986 no longer reflects the views of the Customs Service. Appropriate action will be taken to change that decision. The following represents our position and is responsive to your request for a ruling.

FACTS:

The product called "Ranch Seasoning" was described in NYRL 878986 as a powder composed of 83 percent dry buttermilk, 15 percent salt, 1.5 percent garlic powder, .5 percent onion powder and found to contain 3.75 percent butterfat. The product was used as a flavoring ingredient in potato chips, crackers, and other salty snacks.

The product produced in Mexico or Ireland as described in your letter indicates that it is composed of 80 percent buttermilk powder, 15 percent salt, 1.5 percent garlic powder, and 1.1. percent onion powder. The product will be used to flavor snack foods such as potato chips and tortilla chips. You opine that the product is classified as an other mixed condiment or mixed seasoning, in subheading 2103.90.80, HTSUS. You also opine that if the product is produced in Mexico with the use of non-originating materials, the product qualifies for the special rate of duty applicable for products from Mexico in accordance with the North American Free Trade Agreement.

ISSUE:

The issue is whether the merchandise composed of 80 percent milk powder is more appropriately described as a food preparation of milk (i.e., a good of heading 0401 to 0404) in heading 1901, or, as a seasoning in heading 2103, HTSUS.

LAW AND ANALYSIS:

Heading 1901, HTSUS, provides, in part, for food preparations of goods of headings 0401 to 0404, not containing cocoa or containing less than 5 percent by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included. Headings 0401 to 0404, are milk provisions. Heading 1901 is a food preparation provision, which includes, in part, food preparations which derives its essential character from the milk ingredient.

Heading 2103, HTSUS, provides, in part, for food preparations consisting of mixed condiments and mixed seasonings. Heading 2103 does not require the presence of any one specific ingredient (such as milk). Also, heading 2103 is not qualified by the phrase "not elsewhere specified or included" as is heading 1901. Heading 2103 is a use provision. Additional U.S. Rules of Interpretation, 1(a), HTSUS, states that

1. In the absence of special language or context which otherwise requires--

(a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.

In our opinion, the salt (15 percent), garlic (1.5 percent) and onion powder (.5 and 1.1 percent) significantly affect the organoleptic properties of the blends of "Seasoning Blend 817" and the product" Ranch Seasoning" ( which was the subject of NYRL 878986), and belongs to a class or kind of goods composed of a variety of ingredients, principally used to flavor human foods during their preparation, I. e., a seasoning. The merchandise is classified in subheading
2103.90.80, HTSUS (1997), with duty at the general rate of 7 percent ad valorem and at the special free rate for qualifying originating goods from Mexico.

All of the "non-originating materials" used to make the goods in Mexico are not classified in Chapter 21, HTSUS. Accordingly, such goods produced in Mexico with non-originating materials and imported into the United States, under General Note 12(b)(ii)(A), HTSUS, and General Note 12(t)/21.7, which provides that a change to subheadings 2103 through 2103.90 from any other chapter, are eligible for the tariff treatment as "goods originating in the territory of a NAFTA party,

HOLDING:

The product known as "Seasoning Blend 817", as described above, is classified as other mixed condiments and seasonings, in subheading 2103. 90. 80, HTSUS, with a general duty rate of 7 percent ad valorem, and if an originating good from Mexico as described above, is free of duty under the special rate.

Sincerely,

John Durant, Director
Tariff Classification
Appeals Division

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