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HQ 967692

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July 13, 2006

CLA-2 RR:CTF:TCM 967692 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: Unknown

Mr. Arthur Cherry
Arthur Cherry Associates
1315 Walnut Street Suite 807
Philadelphia, PA 19107

RE: Revocation of New York Ruling Letter (NY) 869842, dated January 8, 1992; Classification of Vindaloo Mix and Bombay Mix.

Dear Mr. Cherry:

This letter is to inform you that the Bureau of Customs and Border Protection (CBP) has reconsidered New York Ruling Letter (NY) 869842, issued to you on January 8, 1992, on behalf of your client, Bonanza International Inc., concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS) of “Vindaloo Mix” and “Bombay Mix.” The snack mixes were 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. Therefore, this ruling revokes NY 869842.

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 revocation of NY 869842 was published in the Customs Bulletin, Vol. 40, No. 22, on May 24, 2006. No comments were received in response to the notice. However, upon further review of the proposed ruling, CBP has determined that it was premature to consider a GRI 3(c) analysis due to the lack of information regarding the complete percentage of the mixture and each of the ingredients method of preparation. If this information is known, classification may be appropriate under GRI 3(b).

FACTS:

Vindaloo Mix and Bombay Mix are described as snack foods consisting of a variety of ingredients that have been fried separately in vegetable oil, mixed together, and seasoned. Vindaloo Mix contains gram flour noodles, yellow split peas, peanuts, lentils, raisins, sunflower seeds, flavoring, and salt. Bombay Mix is a mixture of gram flour noodles, yellow split peas, sunflower seeds, flavoring, puffed rice, and salt. Both mixes will be imported in bulk containers, and will be sold in the bulk form or repackaged.

ISSUE:

Whether the Vindaloo Mix and Bombay Mix are classified in heading 2106, HTSUS, as “Food preparations not elsewhere specified or included" or in accordance with GRI 3(b) in the heading of the article which provides the essential character.

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, which list 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 F82479, dated February 10, 2000, NY C82718, dated March 6, 1998, and NY 889918, dated October 6, 1993.

The ingredients although mixed together in the Vindaloo Mix and Bombay 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 gram flour noodles, yellow split peas, peanuts, lentils, raisins, sunflower seeds, flavoring, puffed rice, and salt 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 gram flour noodles, yellow split peas, peanuts, lentils, raisins, sunflower seeds, flavoring, puffed rice, and salt.

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.

HOLDING:

Due to a lack of information relative to the ingredients breakdown and method of preparation for each component, the precise classification cannot be given. Once the importer submits a new request with this required information the correct classification can be given.

EFFECT ON OTHER RULINGS:

NY 869842, is hereby revoked. 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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