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HQ 964497




January 23, 2001

CLA-2 RR:CR:GC 964497 nel

CATEGORY: CLASSIFICATION

TARIFF NO.: 1701.91.5400, 1701.91.5800

Jose Rodriguez-Ema, V.P.
Diversified Foods, Inc.
3850 N. Causeway Blvd.
Suite 1870
New Orleans, LA 70002

RE: NY D83345; powdered flavored drink mixes from Costa Rica

Dear Mr. Rodriguez-Ema,

This is in reference to your letters of September 7 and 11, 2000, concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of various powered flavored drink mixes from Costa Rica.

As requested, we have reconsidered NY D83345 issued to you on October 27, 1998, and affirm that decision.

FACTS:

The merchandise is described as powdered drink mixes, which are imported in the following flavors: cherry, strawberry, fruit punch, lemonade, orange, and grape. No samples were submitted. Product labels from “Fruti Kool” cherry and orange show the product had a net weight of 24 ounces. The merchandise is sold in supermarkets.

These products have been imported from Costa Rica for several years, classified by Customs under chapter 17, HTSUS, which provides for sugars and sugar confectionery, while you believe they should be classified under chapter 21, HTSUS, which provides for miscellaneous edible preparations.

An ingredient breakdown, as provided, for each of the powdered drink mixes is as follows:

Orange: 94.88% sugar, 3.207% citric acid, 1.001% flavor, 0.599% corn starch (modified), 0.250% tricalcium phosphate, 0.036% ascorbic acid, and 0.030% artificial color.

Fruit punch: 95.68% sugar, 2.820% citric acid, 0.252% flavor, 0.252% sodium citrate, 0.597% corn starch (modified), 0.250% tricalcium phosphate, 0.048% ascorbic acid, and 0.100% artificial color.

Strawberry: 96.50% sugar, 2.006% citric acid, 0.304% flavor, 0.304% sodium citrate, 0.300% tricalcium phosphate, 0.045% ascorbic acid, and 0.200% artificial color.

Cherry: 96.63% sugar, 2.001% citric acid, 0.310% flavor, 0.303% sodium citrate, 0.280% tricalcium phosphate, 0.303% salt, 0.048% ascorbic acid, and 0.130% artificial color.

Grape: 96.53% sugar, 2.301% citric acid, 0.402% flavor, 0.317% tricalcium phosphate, 0.351% salt, 0.048% ascorbic acid, and 0.050% artificial color.

Lemonade: 87.182% sugar, 4.895% citric acid, 0.786% flavor, 0.250% corn starch (modified), 1.350% tricalcium phosphate, 0.048% ascorbic acid, 0.001% artificial color, 5.450 corn syrup solid, and 0.038% xanthan gum.

ISSUE:

Whether the flavored powder drink mixes described above are classified in heading 2106, HTSUS, or heading 1701, HTSUS.

LAW & ANALYSIS:

The classification of imported merchandise under the HTSUS is governed by the principles set forth in the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section and chapter notes and, unless otherwise required, according to the remaining GRIs, taken in their appropriate order. Accordingly, we consider whether the articles are classified under GRI 1.

The following headings are relevant to the classification of these flavored powdered drink mixes:

Heading 1701, HTSUS, at the six digit level, 1701.91, provides for: Cane or beet sugar and chemically pure sucrose, in solid form: Other: Containing added flavoring or coloring matter.

Heading 2106, HTSUS, provides for: Food preparations not elsewhere specified or included.

The mixes may be classified in heading 2106 by virtue of GRI 1 provided that they are not elsewhere specified or included in other headings of the tariff schedule. We are satisfied that the instant merchandise may be classified by virtue of GRI 1.

The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System constitute the official interpretation of the tariff system at the international level. Though not dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

The ENs for heading 2106, HTSUS, state that “[p]owders which have the character of flavoured or coloured sugars used for the preparation of lemonade and the like fall in heading 17.01 or 17.02 as the case may be.”

The products in issue all contain at least 87% sugar with various quantities of citric acid, flavor, sodium citrate, modified corn starch, tricalcium phosphate, ascorbic acid, artificial colors, and small quantities of various other ingredients. As stated in HQ 963668 dated June 23, 2000, Customs has consistently held in our rulings that the ENs for heading 2106 are persuasive and specifically excludes from heading 2106, HTSUS, sugars in solid form containing flavoring and colored matter that are classified in headings 1701 and 1702, HTSUS. See NY D80530 dated August 7, 1998, NY A89697 dated November 27, 1996, and NY A86301 dated August 19, 1996. See also HQ 956823 dated August 8, 1994, HQ 085590 dated November 29, 1989, HQ 084927 dated October 3, 1989, HQ 083940 dated July 5, 1989, and HQ 083698 dated June 1, 1989. These rulings all classify products that contain sugar with similar added ingredients to the products in issue.

Therefore, the applicable tariff provision for the powder flavored drink mixes in issue, if imported in quantities that fall within the limits described in additional U.S. note 8 to chapter 17, will be 1701.91.5400, HTSUS, which provides for: Cane or beet sugar and chemically pure sucrose in solid form: Other: Containing added flavoring matter or coloring matter: Containing added flavoring matter whether or not containing added coloring: Articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17: Described in additional U.S. note 8 to chapter 17 and entered pursuant to its provisions. If the quantitative limits of additional U.S. note 8 to chapter 17 have been reached, the product will be classified in subheading 1701.91.5800, HTSUS. In addition, products classified in subheading 1701.91.5800, HTSUS, will be subject to additional duties based on their value as described in subheadings 9904.17.49 to 9904.17.56, HTSUS.

In your letters you provided information from Costa Rican Customs and the Vice-Minister of Foreign Commerce to support your position that these powdered drink mixes should be classified in heading 2106, HTSUS. These documents are instructive on how others may classify like goods, however, U.S. Customs is not bound to abide by another country’s rulings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

In keeping with our previous classifications of similar products, Customs believes the powdered drink mixes in issue are classified as flavored sugars under subheadings 1701.91.5400 and 17001.91.5800, HTSUS, depending on quota availability.

HOLDING:

The powdered flavored drink mixes in issue were correctly classified in NY D83345 dated October 27, 1998, and will continue to be classified as flavored sugars under subheadings 1701.91.5400 and 1701.91.5800, HTSUS, depending on quota availability.

Sincerely,

John Durant, Director

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