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NY R01842




May 23, 2005

CLA-2-21:RR:NC:2:228 R01842

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.9400

Mr. Peter Quinter
Becker & Poliakoff
3111 Stirling Road
Ft. Lauderdale, FL 33312

RE: The tariff classification of food ingredients from Brazil

Dear Mr. Quinter:

In your letter dated April 25, 2005, on behalf of LEAHG mbH, you requested a tariff classification ruling.

Four products are described in your letter. Drink Cola Concentrate (number one in your letter) is described as “a dark brown liquid which upon dilution is suitable as a beverage”, imported “in units of tons.” The stated ingredients are 65.25 percent saccharose, 34.775 percent water, 0.96 percent “Cola Part I,” 0.015 percent “Cola Part II,” and 0.18-0.20 percent alcohol. The “Cola” ingredients are said to consist of caramel color, phosphoric acid, caffeine, and sodium benzoate. Two products (numbers 2 and 3 in you letter) are identified as Tomato Juice Concentrate with Sugar and Vinegar Added. Both are described as red, viscous liquids containing tomato particles. The first (i.e., item no. 2) is said to be composed of 61.8 percent sugar, 27.7 percent water, 7 percent tomato paste (36/38 Brix), and 3.5 percent vinegar. The second (i.e., item no. 3) is said to consist of 83 percent “sugar solution,” 10 percent tomato paste (23 Brix), and 7 percent vinegar.

You have provided copies of documents identified as “European Community – Binding Tariff Ruling[s]” indicating the Drink Cola Concentrate was classified in subheading 2106.90, HS, and the Tomato Juice Concentrates were classified in subheading 2001.90, HS. Based on those documents you suggest the latter should be classified in subheading 2001.90.9060, Harmonized Tariff Schedule of the United States (HTS), and the former in 2106.90.9972, HTS. We do not agree. Based on their ingredient composition and presentation, they are more specifically provided for elsewhere.

The applicable subheading for the Drink Cola Concentrate and the Tomato Juice Concentrate with Sugar and Vinegar Added (identified as item 2 in your letter) will be 2106.90.9400, HTS, which provides for food preparations not elsewhere specified or includedotherotherotherarticles containing over 65 percent by dry weight of sugar described in additional U.S. note 2 to chapter 17other. The duty rate will be 28.8 cents per kilogram plus 8.5 percent ad valorem. In addition, products classified in subheading 2106.90.9400, HTS, will be subject to additional duties based on their value, in subheadings 9904.17.31 to 9904.17.38, HTS.

This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at 301-575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html.

Your inquiry does not provide enough information for us to give a classification ruling on Tomato Juice Concentrate with Sugar and Vinegar Added (item no. 3 in your letter). Your request for a classification ruling should include the Brix of the “sugar solution” ingredient. When this information is available, you may wish to consider resubmission of your request.

Your request for a tariff classification ruling for the fourth product described in your letter, Black Tea Extract with Sugar and Water Added, was the subject of ruling R01843, dated May 10, 2005.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Stanley Hopard at 646-733-3029.

Sincerely,

Robert B. Swierupski
Director,

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