CLA-2 RR:CR:GC 960694 RC
Maureen Pearson, Esq.
Katten, Muchin, & Kavis
525 West Monroe Street
Chicago, Illinois 60661-3693
RE: White dipping icing, donut glaze, and chocolate dipping
icing
Dear Ms. Pearson:
This is in response to letters dated May 23 and June 23,
1997, submitted on behalf
of Kerry Ingredients, concerning the classification of white
dipping icing, donut glaze, and chocolate dipping icing under the
Harmonized Tariff Schedule of the United States (HTSUS).
On January 8, 1998, you, your client, and an associate met with
Headquarters personnel to discuss this matter. In addition, your
office made subsequent submissions that were considered.
FACTS:
The white dipping icing consists of water, sugar, agar-agar,
dextrose, partially hydrogenated soy oil, corn syrup 63 DE, salt,
sodium propionate, mono+diglyceride emulsifier, lecithin, vanilla
flavor, potassium sorbate, titanium dioxide, and citric acid.
The donut glaze consists of water, sugar, agar-agar, salt,
mono+diglyceride emulsifier, propylene glycol, cellulose gum,
potassium sorbate, citric acid, and maltodextrin 5 DE. The
chocolate dipping icing consists of water, sugar, dextrose, agar-agar, partially hydrogenated soy oil, natural process cocoa, corn
syrup 63 DE, salt, sodium propionate, lecithin, potassium
sorbate, and vanilla flavor.
All of the products contain over 65 percent by dry weight of
sugar. Made in Canada, the products will be imported in ready-to-use condition in either one-/or five-gallon pails or in 10 kg
laminated-plastic pouches. The products will be used in the
imported condition, without further processing or heating, to
frost or glaze donuts and other bakery goods by dipping the baked
good in the icing or glaze. The products will be used by
commercial bakeries and foodservice establishments in the United
States.
ISSUE:
What is the proper tariff classification for the white
dipping icing, donut glaze, and chocolate dipping icing,
described above, under the HTSUS?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with
the General Rules of Interpretation (GRI's). The systematic
detail of the HTSUS is such that virtually all goods are
classified by application of GRI 1, that is, 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's may
then be applied. GRI 6 provides that the GRI's apply in the same
fashion to subheadings within the same heading.
The Harmonized Commodity Description and Coding System
Explanatory Notes (EN's) constitute the official interpretation
of the HTSUS. While not legally binding, and therefore not
dispositive, the EN's provide a commentary on the scope of each
heading of the HTSUS and are thus useful in ascertaining the
proper classification of merchandise under the System. Customs
believes the EN's should always be consulted. See, T.D. 89-80,
54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
Additional U.S. Notes 2 and 3 to chapter 17, HTSUS, read as
follows:
2. For the purposes of this schedule, the term
"articles containing over 65 percent by dry weight of
sugar described in additional U.S. note 2 to chapter
17" means 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 ultimate consumer in the identical
form and package in which imported.
3. For the purposes of this schedule, the term
"articles containing over 10 percent by dry weight of
sugar described in additional U.S. note 3 to chapter
17" means articles containing over 10 percent by dry
weight of sugars derived from sugar cane or sugar
beets, whether or not mixed with other ingredients,
except (a) articles not principally of crystalline
structure or not in dry amorphous form, the foregoing
that are prepared for marketing to the ultimate
consumer in the identical form and package in which
imported; (b) blended syrups containing sugars derived
from sugar cane or sugar beets, capable of being
further processed or mixed with similar or other
ingredients, and not prepared for marketing to the
ultimate consumer in the identical form and package in
which imported; (c) 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 ultimate consumer in the
identical form and package in which imported; or (d)
cake decorations and similar products to be used in the
same condition as imported without any further
processing other than the direct application to
individual pastries or confections, finely ground or
masticated coconut meat or juice thereof mixed with
those sugars, and sauces and preparations therefor.
You argue that the chocolate dipping icing is classified in
subheading 1806.20.9900, HTSUS, and that the white dipping icing
and donut glaze are classified in subheading 2106.90.9997, HTSUS.
It is your opinion that the articles do not fall into the tariff
rate quotas described by chapter 17, Additional U.S. Notes 2 or
3, because the toppings are ready to use and, therefore, are not
"capable of being further processed or mixed with similar or
other ingredients," as required by chapter 17 Additional U.S.
Note 2. In the alternative, you argue that, as pastry toppings,
the articles fall within the "cake decorations" exception to the
quota of chapter 17 Additional U.S. Note 3.
It is undisputed that the toppings contain over 65 percent
by dry weight of sugar and that they are not prepared for
marketing to the ultimate consumer in the identical form and
package in which they are imported (per Additional U.S. Note 2(d)
of Section IV, HTSUS, the bakeries and food service
establishments to which the products at issue will be sold are
not "ultimate consumers"). The remaining issue, pursuant to
Additional U.S. Note 2, is whether the toppings are "capable of
being further processed or mixed with similar or other
ingredients."
According to Section IV, Additional U.S. Note 2(b) "the term
capable of being further processed or mixed with similar or
other ingredients' means that the imported product is in such
condition or container as to be subject to any additional
preparation, treatment or manufacture or to be blended or
combined with any additional ingredient, including water or any
other liquid, other than processing or mixing with other
ingredients performed by the ultimate consumer prior to
consumption of the product."
The word "ingredient" is not specifically defined in the
tariff schedule. A tariff term that is not defined in the HTSUS
or in the EN's is construed in accordance with its common and
commercial meaning. Nippon Kogaku (USA) Inc. v. United States,
69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning
may be determined by consulting dictionaries, lexicons,
scientific authorities and other reliable sources. C.J. Tower &
Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).
According to Webster's Ninth New Collegiate Dictionary (1991),
the term "ingredient" is defined as "something that enters into a
compound or is a component part of any combination or mixture."
(Emphasis supplied). The toppings and the "untopped" donuts,
pastries, or cakes are components combined to make finished
goods. Therefore, we find that the toppings are capable of being
combined with additional ingredients, to wit, donuts, pastries,
or cakes.
Accordingly, we find that the toppings are subject to
Additional U.S. Note 2. Therefore, Additional U.S. Note 3 (and
its exceptions) do not apply to the products at issue.
You also argue that the holding in Wilsey Foods, Inc., v.
United States, Slip Op. 94-46 (Ct. Int'l Trade, decided March 16,
1994), should apply, here. We disagree. In Wilsey, the court
addressed the tariff classification of products used to coat
confections and/or pastries that contained between 39-45 percent
sugar, products to which chapter 17 Additional U.S. Note 2 could
not have applied. The Wilsey case is thus inapplicable because
all of the toppings at issue here contain more than 65 percent
sugar. With respect to the Customs rulings you cite, we note
that HQ 956246 (July 24, 1994) and HQ 956100 (February 7, 1995)
also pertain to articles containing less than 65 percent sugar.
Additionally, we note that the rulings cited that were issued
prior to 1995 have been modified by operation of law, when
Section IV Additional U.S. Note 2 and chapter 17 Additional U.S.
Notes 2 and 3 were adopted in 1995. Lastly, with respect to NY
813028 (August 9, 1995), the ruling (pertaining to sugar flowers)
did not indicate how the goods would be packaged when imported,
that is, for the "ultimate consumer" or in bulk. We will further
examine NY 8l3028 and modify or clarify it, as appropriate.
The instant white dipping icing and donut glaze toppings are
similar to the bakers' wares ruled upon in NY A89108, dated
November 14, 1996. There, Customs classified toppings,
containing 80 percent sugar, in subheading 2106.90.9400, HTSUS.
Likewise, the white dipping icing and donut glaze, here, are
classifiable in subheading 2106.90.9400, HTSUS. Following the
same classification analysis as for the white dipping icing and
donut glaze, the chocolate dipping icing, containing 5.3 percent
cocoa, is classifiable in subheading 1806.20.7300, HTSUS.
We have coordinated our efforts with the Foreign
Agricultural Service of the Department of Agriculture. In a
letter dated March 17, 1998, that office expressed agreement with
the findings set forth in this ruling.
HOLDING:
The white dipping icing and donut glaze are classifiable in
subheading 2106.90.9400, HTSUS, the provision for "Food
preparations not elsewhere specified or included: Other: Other:
Other: Other: Other: Articles containing over 65 percent by
dry weight of sugar described in Additional U.S. Note 2 to
chapter 17: Other, dutiable at the general column one rate of
30.5 cents per kilogram, plus 9 percent ad valorem.
The chocolate dipping icing is classifiable in subheading
1806.20.7300, HTSUS, the provision for "Chocolate and other food
preparations containing cocoa: Other preparations in blocks,
slabs or bars, weighing more than 2 kg or in liquid, paste,
powder, granular or other bulk form in containers or immediate
packings, of a content exceeding 2 kg: Other: Containing more
than 65 percent by weight of sugar: Other: Articles containing
over 65 percent by dry weight of sugar described in Additional
U.S. Note 2 to chapter 17: Other, dutiable at the general column
one rate of 32.3 cents per kilogram, plus 9 percent ad valorem.
Sincerely,
John Durant, Director,
Commercial Rulings Division