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HQ 966111





July 13, 2006

CLA-2 RR:CTF:TCM 966111 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 2008.11.4500 or 2008.11.6000

Mr. Rodney Ralston
UPS Supply Chain Solutions
One UPS Way
Champlain, NY 12919

RE: Modification of New York Ruling Letter (NY) I82449, dated June 12, 2002; Classification of Oriental Garden 2 Mix.

Dear Mr. Ralston:

This letter is to inform you that the Bureau of Customs and Border Protection (CBP) has reconsidered New York Ruling Letter (NY) I82449, issued to you on June 12, 2002, on behalf of your client, Natursource, Inc., concerning the classification, in part, under the Harmonized Tariff Schedule of the United States (HTSUS) of “Oriental Garden 2 Mix.” The snack mix was classified in heading 2106, HTSUS, which provides for: “Food preparations not elsewhere specified or included." We have reviewed that ruling and found it to be in error as it pertains to the classification of the Oriental Garden 2 Mix. Therefore, this ruling modifies NY I82449.

Pursuant to section 625(c), Tariff Act of 1930, (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103–182, 107 Stat. 2057, 2186 (1993), notice of the proposed modification of NY I82449 was published in the Customs Bulletin, Vol. 40, No. 22, on May 24, 2006. No comments were received in response to the notice.

FACTS:

Oriental Garden 2 is a mixture of 16% flavored pretzels, 15% flavored peanuts, 15% prepared green peas, 14% salted blanched peanuts, 15% flavored peanuts, 12% fried noodles, 10% pretzels, 9% sesame sticks, and 9% Cajun corn. The snack food will be sold in various weight packages through retail stores, cruise lines, airlines, etc.

ISSUE:

Whether the Oriental Garden 2 Mix is classified in heading 2106, HTSUS, as: “Food preparations not elsewhere specified or included" or as a mixture in accordance with GRI 3(c) in heading 2008, HTSUS, which provides for: “Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included.”

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined 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 GRI may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. It is Customs and Border Protections’ (CBP) practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Heading 2106, HTSUS, provides for: “Food preparations not elsewhere specified or included." Heading 2106, HTSUS, is to be considered if the product is not more specifically described in another provision of the HTSUS.

The food preparations of heading 2106, HTSUS, are generally considered to be mixtures of food ingredients to be used in or with other foods. This is illustrated by the EN’s to heading 2106, HTSUS. The EN’s to heading 2106, HTSUS, lists several examples of goods composed of a mixture of ingredients. Some of the mixtures are listed as follows:

(A) Preparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk, etc.) for human consumption.

(B) Preparations consisting wholly or partly of foodstuffs, used in the making of beverages or food preparations for human consumption. The heading includes preparations consisting of mixtures of chemicals (organic acids, calcium salts, lecithin, etc.) with foodstuffs (flour, sugar, milk powder, etc.), for incorporation in food preparations either as ingredients or to improve some of their characteristics (appearance, keeping qualities, etc.)....

While some mixtures have been classified in heading 2106, HTSUS, absent a more specific heading in the HTSUS, not all such mixtures have been classified therein. In HQ 089051, dated July 11, 1991, a mixture of wheat, oats, sunflower kernels, green peas and yellow peas to be used as salad topping was classified in heading 2106, HTSUS. In classifying the salad topping, we noted:

While the EN does not specifically cover mixtures of the type under consideration and some of the mixtures it covers are, what might be termed, intermediate products, products which will be used as an ingredient in making something else, we believe it shows that this heading is meant to cover the subject article. In this regard, we noted that Heading [2106] covers preparations for use for human consumption. We believe that this confirms the intent to include human food preparation composed of several disparate ingredients in Chapter 21, HTSUSA. See also HQ 953651, dated June 16, 1993.

In contrast, in HQ 082230, dated January 12, 1989, a blend of sucrose and dextrose was classified in heading 1701, HTSUS, rather than heading 2106, HTSUS, because, “such a mixture does not ipso facto render the blend a food preparation; the act of mixing does not alter the nature or use of the product such that it would no longer be classifiable in Chapter 17.” See also HQ 085105, dated July 31, 1989, NY L83687, dated April 14, 2005, NY F82479, dated February 10, 2000, NY C82718, dated March 6, 1998, and NY 889918, dated October 6, 1993.

The pretzels, peanuts, green peas, fried noodles, sesame sticks and Cajun corn although mixed together in the Oriental Garden 2 Mix, maintain their original identity. Each commodity remains complete and recognizable and is not subordinated into a new product merely by the act of mixing with the other. The final product remains a mixture of pretzels, peanuts, green peas, fried noodles, sesame sticks and Cajun corn and will be marketed as such. As such it cannot be classified in heading 2106, HTSUS.

Because classification in a single heading cannot be determined by applying GRI 1, we must apply the other GRI's. GRI 2(b) states that if a product is a mixture or combination of materials or substances that are, prima facie, classifiable in two or more headings, then GRI 3 applies. GRI 3(b) provides that composite goods consisting of different materials or made up of different
components, shall be classified as if they consisted of the material or component which gives them their essential character.

The article is a mixture made up of 16% flavored pretzels (1905), 15% flavored peanuts (2008), 15% prepared green peas (2005), 14% salted blanched peanuts (2008), 15% flavored peanuts (2008), 12% fried noodles (1902), 10% pretzels (1905), 9% sesame sticks (1905), and 9% Cajun corn (1904). Therefore, the component that imparts the essential character to this article determines its classification.

EN VIII to GRI 3(b), page 4, states that the factors will vary as between different kinds of goods to determine the essential character of an article. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

It is our determination that none of the articles in the commodity gives the mixture its essential character. We, therefore, turned to GRI 3(c) which provides:

(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

The heading that occurs last in numerical order is Heading 2008, HTSUS. Therefore, the submitted merchandise is classified in this heading.

HOLDING:

By application of GRI 3(c), the Oriental Garden 2 Mix is classified in heading 2008, HTSUS, as: “Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included.” The applicable subheading for the "Oriental Garden 2 Mix," if imported in quantities that fall within the limits described in additional U.S. note 2 to chapter 12, will be 2008.11.4500, HTSUS, which provides for: “Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Nuts, peanuts (ground-nuts) and other seeds, whether or not mixed together: Peanuts (ground-nuts): Other: Described in additional U.S. note 2 to chapter 12 and entered pursuant to its provisions.” The rate of duty will be 6.6 cents per kilogram. If the quantitative limits of additional U.S. note 2 to chapter 12 have been reached, the product will be classified in subheading 2008.11.6000, HTSUS, which provides for: “Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Nuts, peanuts (ground-nuts) and other seeds, whether or not mixed together: Peanuts (ground-nuts): Other: Other” and will be dutiable at 131.8 percent ad valorem. In addition, products classified in subheading 2008.11.6000, HTSUS, will be subject to additional duties based on their value, as described in subheadings 9904.12.01 - 9904.12.19, HTSUS.

EFFECT ON OTHER RULINGS:

NY I82449 is hereby modified. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director
Commercial Trade Facilitation Division

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