CLA-2 CO:R:C:G: 084927 DPS

Mr. Roman E. Longoria, Jr.
International Consulting
P.O. Box 578
McAllen, Texas 78502

RE: Powdered Beverage Mixes

Dear Mr. Longoria:

Your letter of May 29, 1989, on behalf of Deshidratadora, S.A. de C.V., Mexico, D.F., requesting classification of various food products from Mexico under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), has been referred to this office for a ruling on the classification of two beverage mixes, Margarita Mix and Lime Mix. Samples of the subject merchandise were provided with your ruling request.

FACTS:

The beverage mixes requiring classification are described as: (1) Maruka Brand Margarita Mix; and (2) Sahara Brand Limeade Mix. Both of these items are stated to contain over 86 percent sucrose, along with various acids, flavors and colors. To prepare the limeade drink, only water need be added. To prepare the Margarita drink, the addition of water and tequila is called for. Both items are packaged in tin cans which have resealable plastic lids. Instructions for making the drinks are included on the labels.

ISSUE:

Whether the subject drink mixes are classifiable under subheading 1701.91.4000, HTSUSA, the provision for cane or beet sugar and chemically pure sucrose containing added flavoring matter; and whether the beverage mixes, as classified are subject to a quota under subheading 9904.50.40, HTSUSA.

LAW & ANALYSIS

The General Rules for the Interpretation of the Harmonized System (GRI's) govern classification under the Harmonized Tariff Schedule. According to GRI 1, the primary consideration in determining whether merchandise should be classified in a heading should be given to the language of the heading and any relevant chapter or section notes, and, provided such headings or notes do not otherwise require, according to the remaining GRI's, taken in order.

Pursuant to GRI 1, the subject beverage mixes are to be classified according to their ingredients because no heading specifically describes "powdered drink mixes." Both items are stated to contain over 86 percent sucrose along with various acids, flavor and color additives. The subheading which most accurately describes these mixes is 1701.91.4000, HTSUSA, which provides:

Cane or beet sugar and chemically pure sucrose in solid form: Other: Containing added flavoring or coloring matter: Containing added flavoring matter whether or not containing added coloring.

Because the dominant ingredient in the beverage mixes at issue is sucrose, and both mixes include other flavoring matter and coloring, subheading 1701.91.4000, HTSUSA, is the appropriate classification of the powdered drink mixes.

Classification of these products in subheading 1701.91.4000, HTSUSA, is confirmed by the Explanatory Notes to the HTSUSA, which constitute the official interpretation of the tariff at the international level. The Explanatory Notes to Heading 2106, the only competing provision in this case, which covers "Food preparations not elsewhere specified or included," state at page 160, that "powders 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."

Having determined that the subject beverage mixes are classifiable under subheading 1701.91.4000, HTSUSA, the next issue to be determined is whether they are subject to quota under subheading 9904.50.40, HTSUSA. That provision states, in pertinent part:

Articles containing over 65 percent by dry weight of sugars derived from sugar cane or sugar beets, whether or not mixed with other ingredients, capable of being further processed or mixed with similar or other ingredients, and not prepared for

marketing to the retail consumers in the identical form and package in which imported; all the foregoing articles provided for in subheading 1701.91.40, 1702.90.50,...

Here, the samples provided for classification are packages prepared for marketing to retail consumers. Consistent with the language above, such products are not subject to quota under subheading 9904.50.40, HTSUSA. Accordingly, neither of the beverage mixes at issue are subject to quota, provided that they are imported in packaged form, ready for retail sale to consumers.

HOLDING:

The two beverage mixes at issue are properly classifiable under subheading 1701.91.4000, HTSUSA, the provision for sucrose containing added flavoring matter. Neither of the products are subject to quota under subheading 9904.50.40, HTSUSA, provided that both products are imported in packaged form, ready for sale in the retail market. Items classified under subheading 1701.91.4000, HTSUSA, are dutiable at the rate of 6 percent ad valorem. However, items within this classification which are products of Mexico, a beneficiary nation under the Generalized System of Preferences (GSP), are entitled to duty free treatment under the GSP upon compliance with all applicable regulations.

Sincerely,

John Durant, Director
Commercial Rulings Division