CLA-2 CO:R:C:F 955580 ASM
District Director
U.S. Customs Service
477 Michigan Avenue
Detroit, Michigan 48226
RE: Application for Further Review of Protest No. 3801-93-
101396, Tariff Classification of Rainbow Sprinkles.
Dear Sir:
This is a decision on a protest filed April 22, 1993,
against your decision in the classification of merchandise
liquidated on March 12, 1993.
FACTS:
The product that is the subject of this protest is known as
"sprinkles." The merchandise is identified as "rainbow
sprinkles, " short, thin, round filaments in a variety of colors.
The ingredient composition of the sprinkles varies according to
customer specifications. In all cases, however, the principal
ingredients are icing sugar (from 68 to 85 percent) and
hydrogenated vegetable oil (7.5 to 13 percent). Other
ingredients that may be present include glucose, starch lecithin,
gum arabic, confectioner's shellac, and colors. This product was
imported in bulk and varying sizes of 40, 25, 10 and 7 pound
boxes, and entered under subheading 1704.90.2010, Harmonized
Tariff Schedule of the United States Annotated (HTSUSA), as sugar
confectionery for retail sale.
At liquidation, Customs reclassified the merchandise under
subheading 2106.90.6097 (currently 2106.90.6997), HTSUSA, as a
food preparation not elsewhere specified or included, containing
sugar derived from sugar cane and/or sugar beets.
The protestent seeks reclassification of the goods to
subheading 1704.90.2010, HTSUSA, as a "Sugar confectionery
(including white chocolate), not containing cocoa: Other:
Confections or sweetmeats ready for consumption: Other: Other."
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ISSUE:
What is the proper classification under the HTSUSA of the
subject merchandise, rainbow sprinkles?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is made in
accordance with the General Rules of Interpretation (GRI's). As
stated in GRI 1, the classification is determined first in
accordance with the terms of the headings which must be read in
conjunction with the relative section and chapter notes. If GRI
1 fails to classify the goods and if the headings and legal notes
do not otherwise require, the remaining GRI's are applied in
their appropriate order. The Explanatory Notes to the Harmonized
Commodity Description and Coding System (EN's), facilitate
classification under the HTSUSA by offering guidance in
understanding the scope of the headings and GRI's.
The protestent has asserted that the product should be
classified in subheading 1704.90, HTSUSA, as a sugar
confectionery "ready for consumption." In Leaf Brands Inc. v.
United States, 70 Cust. Ct. 66, CD 4409 (1973), the court stated:
"it follows that a criterion for classification of an article as
a confectionery is its use (which may be evidenced by its manner
of sale) as a confection rather than its shape or texture." The
court further stated that the term confectionery "applies to many
kinds of sweet tasting articles which are eaten as such for the
taste and flavor without further preparation and which are
usually sold in confectionery outlets."
The principles set forth in Leaf Brands , supra, have been
applied in a Headquarters ruling under the HTSUSA. Specifically,
Headquarters ruling 085206, dated February 23, 1990, stated
Customs's position that "confections ready for consumption" means
that "a product, as it is marketed, and in its condition as
imported, must be ready for immediate consumption at retail as a
confectionery, and is not, for example, merchandise which will be
used as an ingredient in the baking industry."
The rainbow sprinkles now in question, are clearly an
ingredient used as a topping on various products, and in the
baking industry. Furthermore, the protestent has indicated that
the product is packed in bulk, for end use by bakers,
distributors and wholesalers. Thus, the rainbow sprinkles are
not products ready for immediate consumption at retail as a
confectionery, and cannot be classified under subheading 1704.90,
HTSUSA.
Inasmuch as this product is not covered by any other heading
of the Nomenclature, the proper classification of the rainbow
sprinkles is in subheading 2106.90.6097 (currently 2106.90.6997),
HTSUSA, as a food preparation not elsewhere specified or
included.
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HOLDING:
The protest should be denied. A copy of this decision
should be attached to the Form 19 to be returned to the
protestant.
The product, rainbow sprinkles, was properly classified in
1992 under subheading 2106.90.6097, HTSUSA, a provision for
"Food preparations not elsewhere specified or included" and
dutiable at 6 percent ad valorem as a product of Canada.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing this decision. Sixty days
from the date of the decision, the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS, and to the
public via the Diskette Subscription Service, the Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division