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HQ 965905





February 6, 2004

CLA-2 RR:CR:GC 965905 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 1702.90.1000; 1702.90.2000

Mr. David J. Levine
McDermott, Will & Emery
600 Thirteenth Street, N.W.
Washington, D.C. 20005-3096

RE: Cane Honey from Columbia; Reconsideration of NY I83895

Dear Mr. Levine:

This is in response to your letter of September 23, 2002, requesting reconsideration of New York Ruling Letter (NY) I83895, issued to you on August 23, 2001, on behalf of Liquid Gold, Inc., concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of Cane Honey. Further discussion and presentation of arguments took place at a meeting with you at our Headquarters offices on October 9, 2003. We regret the delay.

FACTS:

Your letter of June 21, 2002, indicated that the subject merchandise, “Cane Honey”, is described as pure, concentrated juice of sugar cane. The subject merchandise is produced by a patented process, which begins with the sugar cane harvested by hand to minimize extraneous material. The harvested sugar cane is cut into smaller pieces, which are fed into a mill and passed through two roller presses that extract the cane juice. The juice is filtered through a primary steel screen filter and a secondary vibrating screen filter. Calcium Hydroxide (milk of lime) is added to adjust the pH level of the juice to 8 or 8.5. After the pH is adjusted, the juice is heated to approximately 99 degrees Celsius. After heating, the juice is clarified by adding natural flocculates (guasimo, mataraton, and cadillo) that attach to the impurities. The flocculates and impurities float to the bottom of the juice and are removed. The juice is clarified a second time and kept at a constant 60 degrees Celsius. The product is now 99.9 percent impurity free and has a Brix of 60 degrees. After clarification, the juice is concentrated through a vacuum procedure. After concentration the juice is pumped into a tank where it will cool to a temperature below 54.4 degrees Celsius. The final product is a concentrated sugar cane juice free from impurities and sterilized to prevent fermentation. The processing also inverts the sugar to 47 percent to 48 percent glucose and fructose and 3 percent or less of sucrose. The low sucrose content prevents the product from crystallizing. The merchandise is not subjected to further processing into refined sugar.

The Cane Honey can be consumed directly or used as an ingredient in making various juice beverages. The product will be sold to the consumer in 375 milliliter or 12.7 fluid ounce bottles. It may also be sold in 5 gallon plastic containers and/or 55 gallon plastic drums for the industrial juice beverage market. The industrial use includes adding the product as a flavoring ingredient in the production of juice beverages and other foods.

The Customs laboratory has determined that the Cane Honey contains a total sugar content of 72.1 percent, with 37.7 percent fructose, 34.4 percent glucose and no sucrose. The soluble non- sugar solids are equal to 5.2 percent of the total soluble solids.

Your letter of September 23, 2002, states that the product should be classified in a provision other than subheading 1702.90.1000 or 1702.90.2000, HTSUS. You request classification in subheading 2106.90.9972, HTSUS, as Food Preparation not elsewhere specified or included, or in the alternative, in subheading 2009.80.80, HTSUS, as Fruit juices and vegetable juices, whether or not containing added sugar or other sweetening matter.

ISSUE:

Whether Cane Honey is classifiable in subheading(s) 1702.90.1000 or 1702.90.2000, as a sugar, in chapter 21 as a food preparation or in chapter 20 as a vegetable juice.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTSUS. Most imported goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs.

The HTSUS provisions under consideration are as follows:

Other sugars, including chemically pure lactose, maltose, glucose and fructose, in solid form; sugar syrups not containing added flavoring or coloring matter; artificial honey, whether or not mixed with natural honey; caramel:

Other, including invert sugar and other sugar and sugar syrup blends containing in the dry state 50 percent by weight of fructose: Derived from sugar cane or sugar beets:
Containing soluble non-sugar solids (excluding any foreign substances that may have been added or developed in the product) equal to 6 percent or less by weight of the total soluble solids: Described in additional U.S. note 5 to this chapter and entered pursuant to its provisions

1702.90.2000 Other [subject to subheadings 9904.17.08--9904.17.16]

Fruit juices (including grape must) and vegetable juices, not fortified with vitamins or minerals, unfermented and not containing added spirit, whether or not containing added sugar or other sweetening matter: Juice of any other single fruit or vegetable: Vegetable juice
Other
Food preparations not elsewhere specified or included: Other:
Other:
Other:
Other:
Other:
Other,

Preparations for the manufacture of beverages: 2106.90.9972 Containing sugar derived from sugar cane and/or sugar beets

Classification in heading 1702 can be determined based on the definition within the ENs to heading 1702. The ENs, p. 148, in section B, describe the types of products classified as liquid sugar products under the heading "sugar syrups." The notes state:

This part covers syrups of all sugars (including lactose syrups and aqueous solutions other than aqueous solutions of chemically pure sugars of heading 29.40), provided they do not contain added flavouring or colouring matter (see Explanatory Note to heading 21.06).

In addition to the syrups referred to in Part (A) above (i.e., glucose (starch) syrup, fructose syrup, syrup of malto-dextrins, inverted sugar syrup as well as sucrose syrup), this heading includes: [emphasis added]

Simple syrups obtained by dissolving sugars of this Chapter in water. Juices and syrups obtained during the extraction of sugars from sugar beet, sugar cane, etc. [emphasis added] These may contain pectin, albuminoidal substances, mineral salts, etc., as impurities. Golden syrup, a table or culinary syrup containing sucrose and invert sugar. Golden syrup is made from the syrup remaining during sugar refining after crystallization and separation of refinined sugar, or from cane or beet sugar, by inverting part of the sucrose or by the addition of invert sugar.

The ENs use the terms "syrups," "aqueous solutions," and "juices" to distinguish the types of sugar products classified in heading 1702 from those in "solid form" in heading 1701. The second example listed supra describes "Juices and syrups obtained during the extraction of sugars from sugar beets, sugar cane, etc. These may include pectin, albuminoidal substances, mineral salts, etc., as impurities."

The Cane Honey is also extracted from sugar cane. The cane is also cut, and milled. The cane juice is also filtered, mixed with milk of lime, heated, clarified, and concentrated through a vacuum procedure. The fact that the sugar cane is from select varieties, harvested at a precise time, not fumigated, cut by hand, not produced with added water, adjusted to a specific pH level, and highly purified, does not change the fact that the end result is a liquid sugar product extracted from sugar cane with 72.1 percent sugar solids and 5.2 percent soluble non sugar solids in the total soluble solids.

Although the information presented indicates that the cane juice follows a different and possibly labor-intensive and expensive path from the field to its end use, in the final analysis, the nature, origin, and use of the product causes it to be classified in heading 1702, HTSUS.

You have argued that the product is classified in heading 2106, HTSUS, as a food preparation not elsewhere specified or included. This classification depends in this case on a failure to find any prior tariff provision which meets the characteristics and use of the product. As indicated, supra, the product meets the standards of heading 1702, by its use as a table syrup or as a beverage sweetener, derived from sugar cane. Therefore, assuming that classification in heading 1702 is supported, heading 2106 may not be considered.

Additionally, you argue that the product is eligible for classification in subheading 2009.80.80 as vegetable juice. This proposition is based on a misunderstanding of the tariff use of the term vegetable. Vegetable juice may only be derived from a vegetable and sugar cane is not regarded as a vegetable for tariff purposes. All vegetables in their natural state are classified in chapter 7, HTSUS. Sugar cane is referred to as a vegetable product in the exclusionary note from the EN to chapter 7 (p. 54); however, the scope of vegetable products is much larger than vegetables. While sugar cane is a vegetable product, it is not a vegetable and it is provided for eo nomine in chapter 12. The cited subheading of chapter 20 only applies to juices of true vegetables, in which category sugar cane is not included. Moreover, tariff provisions for vegetables are considered use provisions and sugar cane is not used as a vegetable in this context. Therefore, the vegetable juice provision is not applicable to the Cane Honey product.

HOLDING:

The applicable subheading for the Cane Honey, if described in additional U.S. note 5 to chapter 17 and entered pursuant to its provisions, will be 1702.90.1000, HTSUS, which provides for Other sugars, including chemically pure lactose, maltose, glucose and fructose, in solid form; sugar syrups not containing added flavoring or coloring matter; artificial honey, whether or not mixed with natural honey; caramel: Other, including invert sugar and other sugar and sugar syrup blends containing in the dry state 50 percent by weight of fructose: Derived from sugar cane or sugar beets: Containing soluble non-sugar solids (excluding any foreign substances that may have been added or developed in the product) equal to 6 percent or less by weight of the total soluble solids. The rate of duty will be on the total sugars at the rate of 3.6606 cents per kilogram. If not described in additional U.S. note 5 to chapter 17 and not entered pursuant to its provisions, the applicable subheading will be 1702.90.2000, HTSUS. The rate of duty will be on the total sugars at the rate of 35.74 cents per kilogram. In addition, products classified under subheading 1702.90.2000, HTSUS, will be subject to additional duties based on their value as described in subheadings 9904.17.08 to 9904.17.16, HTSUS.

NY I83895 is affirmed.

Sincerely,

Myles B. Harmon, Director

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