CLA-2 CO:R 088756 MBH
TARIFF NO. 2009.11.00
Ms. J.A. Burkham
Customs Administrator
The Procter and Gamble Company
P.O.Box 599
Cincinnati, Ohio 45201
RE: HTSUSA classification of orange juice with calcium
Dear Ms. Burkham:
This is in response to most recent submissions of
December 3, 1990, and December 17, 1990, requesting a ruling
concerning the tariff classification of calcium enriched frozen
orange juice concentrate for manufacture.
FACTS:
The merchandise at issue is frozen concentrated orange juice
for manufacturing (FCOJM). In this instance, however, the FCOJM
is supplemented with calcium for nutritional purposes.
Specifically, 670 milligrams of calcium in the form of calcium
hydroxide is to be added to 100 grams of 65 degree Brix FCOJM.
Calcium amounts to approximately 6 tenths of one percent of the
imported product by weight. Since calcium is present in trace
amounts in oranges, this amount added represents thirteen times
the amount normally found in the product.
In addition to the calcium added, citric and malic acid are
added to the mixture. The reason for the addition of these acids
is stated to be to counter the undesirable flavor effects of the
added calcium, to increase the physical stability of the orange
juice and to help prevent the precipitation of the calcium.
Most of the additional acid added is neutralized. Thus in terms
of the free acid present in the product, it is claimed that there
is actually slightly less acid than is normally present in FCOJM
to which calcium has not been added. A patent for the process of
adding the calcium has been obtained.
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After importation, the product is mixed with orange oil,
orange essence, pulp and water to make orange juice at retail.
In all but one state of the United States, the product is
marketed at retail as 100 percent orange juice fortified with
calcium.
The classification of this product under the Harmonized
System has been the subject of two decisions of the Harmonized
System Committee of the Customs Cooperation Council (CCC) in
Brussels. At its fourth session in October 1989, the Committee
determined that this product was classifiable in heading 2106 as
a food preparation not elsewhere specified or included rather
than in heading 2009 as orange juice. The United States was
among those contracting parties which voted for classification in
heading 20.09. Subsequent to the decision, the United States
entered a reservation to the decision of the Harmonized System
Committee, pursuant to Article 8 of the Harmonized System
Convention. In accordance with Article 8, the CCC referred the
question back to the Harmonized System Committee for
reexamination at its sixth session in October 1990. At that
session, the Committee reaffirmed its prior decision.
ISSUE:
Whether the addition of calcium to orange juice as a
nutritional supplement is consistent with classification of the
product as orange juice within the meaning of heading 20.09,
Harmonized Tariff Schedule of the United States (HTSUS).
LAW AND ANALYSIS:
Heading 20.09, HTSUS provides in pertinent part for fruit
juices whether or not containing added sugar or other sweetening
matter. The merchandise at issue is commercially known as frozen
concentrated orange juice for manufacturing. It therefore is
prima facie within the scope of heading 20.09.
The importer claims that this product is not classifiable as
orange juice but rather is classifiable in heading 2106 as a food
preparation not elsewhere specified or included. It is clear
that under Rule 1 of the General Rules of Interpretation to the
Harmonized Tariff Schedule, if heading 2009 may be said to
describe the merchandise, heading 2106 is inapplicable because
the merchandise is elsewhere specified. Thus the pivotal
question is whether the product is within the scope of heading
20.09.
The importer's position is based on his interpretation of
the Explanatory Notes to heading 20.09. In a Federal Register
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Notice dated August 23, 1989, the Customs Service cited the
following portion of the report of the Joint Committee on the
Omnibus Trade and Competitiveness Act of 1988:
The Explanatory Notes constitute the Customs
Cooperation Council's official interpretation of the
Harmonized system. They provide a commentary on the scope
of each heading of the Harmonized System and are thus useful
in ascertaining the classification of merchandise under the
system.
The Explanatory Notes were drafted subsequent to the
preparation of the Harmonized System nomenclature
itself, and will be modified from time to time by the
CCC's Harmonized System Committee. Although generally
indicative of proper interpretation of the various
provisions of the Convention, the Explanatory Notes,
like other similar publications of the Council, are not
legally binding on contracting parties to the
Convention. Thus while they should be consulted for
guidance, the Explanatory Notes should not be treated
as dispositive.
54 Fed Register at 35128.
The relevant portion of the Explanatory Notes to heading
20.09 provides as follows:
Provided they retain their original character, the fruit or
vegetable juices of this heading may contain substances of
the kinds listed below, whether these result from the
manufacturing process or have been added separately:
(1) Sugar.
(2) Other sweetening agents, natural or synthetic, provided that
the quantity added does not exceed that necessary for normal
sweetening purposes and that the juices otherwise qualify for
this heading, in particular as regards the balance of the
different constituents (see Item (4) below).
(3) Products added to preserve the juice or to prevent
fermentation (e.g., sulphur dioxide, carbon dioxide, enzymes).
(4) Standardizing agents (e.g., citric acid, tartaric acid) and
products added to restore constituents destroyed or damaged
during the manufacturing process (e.g., vitamins, colouring
matter) or to fix the flavor (e.g. sorbitol added to powdered or
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crystalline citrus fruit juices). However, the heading excludes
fruit juices in which one of the constituents (citric acid
essential oil, extracted from the fruit, etc.) has been added in
such quantity that the balance of the different constituents as
found in the natural juice is clearly upset; in such case the
product has lost its original character.
(Emphasis in original)
The importer claims that the addition of calcium to the
product upsets the balance of the constituents in the juice
within the meaning of the Explanatory Note. The addition of the
citric and malic acid is also claimed to have this effect.
The Explanatory Notes to heading 20.09 provide examples of a
change in the balance of the constituents. For example, where
more water than is necessary to reconstitute the juice is added,
a diluted product having the character of a beverage of heading
22.02 such as orangeade or orange drink generally results.
Similarly, the addition of more carbon dioxide than is normally
present in the juice generally creates a product which is
carbonated fruit juice and is no longer commercially known as
juice. Thus where a substance has been added to give the
product the character of a product of another heading, the
product is no longer classifiable in heading 20.09.
The addition of citric and malic acid do not have an effect
comparable to the foregoing examples. The brix-acid ratio, the
balance between the titratable acid content and the sugars in the
instant product is 19.3 which is consistent with U.S. Department
of Agriculture standards for orange juice at retail. Of equal
significance, the citric and malic acid added to the product in
addition to making the calcium available nutritionally, act as a
standardizing agent to balance the taste of the calcium that is,
in order to fix the flavor of the product to be
indistinguishable from orange juice to which calcium has not been
added. As the patent for the process makes clear, "the ratio of
citric acid to malic acid is selected to provide the optimum
flavor character in the juice" that is, to mirror the particular
type of juice desired. Accordingly, neither the role of the acid
nor its amount change the classification of the instant product.
It is clear that there is more calcium than normally
present in orange juice. However, calcium is only naturally
present in orange juice in trace amounts, (approximately .05%).
An increase of a factor of thirteen yields a very small amount of
calcium in the product. In addition, the added calcium is merely
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a nutritional supplement to the juice. In terms of the effect on
the character of the juice, the addition of calcium is de
minimis.
HOLDING:
The instant merchandise is classifiable under the provision
for fruit juices (including grape must) and vegetable juices,
unfermented and not containing added spirit, whether or not
containing added sugar or other sweetening matter: orange
juice: frozen, in subheading 2009.11.00, Harmonized Tariff
Schedule of the United States, dutiable at the rate of 9.25 cents
per liter.
In view of the decision of the Harmonized System Committee
on this issue and in the interest of uniformity of application of
the Harmonized System, the Custom Service has requested the
International Trade Commission pursuant to section 1205 of the
Omnibus Trade Act of 1988 to make such changes in the Harmonized
Tariff Schedule of the United States as may be necessary or
appropriate to promote uniformity of application by conforming
the HTS to the CCC decision. Should those changes be made, you
may wish to resubmit your request for ruling.
Sincerely,
Harvey B. Fox
Director
Office of Regulations and Rulings