CLA-2 RR:CR:GC 960235K
Mr. David Moll
Livingston International, Inc.
352 Sonwil Drive
Buffalo, New York 14225
RE: Modification of New York Ruling Letter (NYRL) 817784 Dated
January 18, 1996;
Supreme Golden Corn Syrup
Dear Mr. Moll:
In response to your letter of December 15, 1995, on behalf
of Nealanders International, Inc., the Customs Service issued to
you NYRL 817784, dated January 18, 1996, concerning the tariff
classification of a variety of products. One of the products,
Supreme Golden Corn Syrup, was classified in subheading
1702.30.4040, Harmonized Tariff Schedule of the United States
(HTSUS), which provides for glucose and glucose syrup, not
containing fructose or containing in the dry state less than 20
percent by weight of fructose...other...glucose syrup, with a
1998 general rate of duty of 2.6 cents per kg, and a special free
rate for Canada, if applicable. This letter is to inform you
that NYRL 817784 no longer reflects the views of the Customs
Service for Supreme Golden Corn Syrup and is modified in
accordance with section 177.9(d) of the Customs Regulations (19
CFR 177.9(d)).
Pursuant to section 625, Tariff Act of 1930 (19 U.S.C.
1625), 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),
hereinafter, section 625), notice of the proposed modification of
NYRL 817784 was published on August 12, 1998, in the Customs
Bulletin, Volume 32, Number 32. One comment was received in
response to the publication. The following represents our
position.
FACTS:
The corn syrup contains 90 percent glucose, 5.9 percent
water, 3.24 percent sugar, 0.5 percent molasses, 0.2 percent
salt, 1 percent potassium sorbate, and 0.06 percent caramel
coloring and is packed in one liter bottles.
ISSUE:
Whether the corn syrup as described is excluded from heading
1702, HTSUS, because it contains added coloring matter.
LAW AND ANALYSIS:
The one commenter suggested that the classification of the
product is controlled by essential character under rule 3(b), of
the General Rules of Interpretation (GRI), HTSUS. The
classification of imported merchandise under the HTSUS is
governed by the principles set forth in the GRI. GRI 1 requires
that classification be determined first according to the terms of
the headings of the tariff schedule and any relative section and
chapter notes and, unless otherwise required, according to the
remaining GRI, taken in their appropriate order. If the
classification of the product is controlled by GRI 1, we are
precluded from considering the remaining GRI. Accordingly, we
first have to determine whether the product is classified under
GRI 1 and we conclude that it is.
The competing headings of HTSUS, are stated, as follows;
Heading 1702 provides for other sugars, including chemically
pure lactose, maltose, glucose and fructose, in solid form;
sugar syrups not containing added flavoring or coloring
matter;
artificial honey, whether or not mixed with natural honey;
(and)
caramel.
Heading 2106, HTSUS, provides for food preparations not
elsewhere specified of included.
The Explanatory Notes (EN's) to the Harmonized Commodity
Description and Coding System, which represent the official
interpretation of the tariff at the international level,
facilitate classification under the HTSUS by offering guidance in
understanding the scope of the headings and the GRI of the HTSUS.
The ENs to chapter 17 on page 138, part (B) Sugar Syrups, state,
in pertinent part, as follows;
This part covers syrups of all sugars....provided they do
not contain added flavouring or coloring matter (see
Explanatory Note to heading 21.06).
The ENs to Chapter 21, on page 171, states that the heading
(21.06) includes, inter alia (among other things):
(12) Preparations for the manufacture of lemonades or other
beverages, consisting, for example, of :
- flavoured or coloured syrups, being sugar solutions with
natural or artificial substances added to give them the
flavour of, for example, certain fruits or plants
(raspberry, blackcurrant, lemon, mint, etc.), whether or not
containing added citric acid and preservatives;
- syrup flavoured with an added compound preparation of
this heading (see paragraph (7) above) containing, in
particular, either cola essence and citric acid, coloured
with caramelised sugar, or citric acid and essential oils of
fruit (e.g., lemon or orange); (Emphasis added.)
- syrup flavoured with fruit juices which have been
modified by the addition of constituents (citric acid,
essential oil extracted from the fruit, etc.) in such
quantities that the balance of the fruit juice constituents
as found in the natural juice is clearly upset;
- concentrated fruit juice with the addition of citric acid
(in such a proportion that the total acid content is
appreciably greater than that of the natural juice),
essential oils of fruit, synthetic sweetening agents, etc.
Such preparations are intended to be consumed as beverages
after simple dilution with water or after further treatment.
Certain preparations of this kind are intended for adding to
other food preparations.
Further, the ENs, pages 138-139, describes caramel
classified in heading 1702, HTSUS, as follows:
Caramel is a brown non-crystallisable substance with an
aromatic odour. It may be in the form either of a more or
less syrupy liquid or of a solid, usually a powder.
It is obtained by more or less prolonged pyrogenation, at a
temperature of 120 - 180 C, from sugars (usually glucose or
sucrose) or from molasses.
Depending on the manufacturing process, a whole series of
products is obtained ranging from caramelised sugars (or
molasses) proper with a sugar content, calculated on the dry
product, which is usually high (of the order of 90 %),
to " colouring " caramels, with a very low sugar content.
Caramelised sugars or molasses are used for flavouring,
particularly in making sweetened desserts, ice cream or
pastry-cooks' products. Colouring caramels, because of a
fairly high degree of conversion of the sugars into
melanoidin (a colorant), are used as colouring substances
in, for example, biscuit-making, brewing and the manufacture
of certain non-alcoholic beverages.
Caramel sugar is specifically provided for in heading 1702
and according to the ENs, the provision for caramel includes
caramelised sugar used as a coloring or flavoring matter in the
preparation of food products. However, the product in question
is not caramel sugar although it contains a small amount of
caramelised sugar used as a coloring or flavoring matter. Sugar
syrups are also specifically provided for in several subheadings
of heading 1702. However, according to heading 1702, HTSUS, and
the ENs, a sugar syrup containing coloring or flavoring matter
such as caramelised coloring or flavoring matter is precluded
from coverage in heading 1702, HTSUS. Accordingly, the product
is not classified under GRI 1 in heading 1702, HTSUS.
Heading 2106 HTSUS, provides for food preparations not
elsewhere specified or included. Since the product is not
specified or included in heading 1702, the heading is broad
enough to include the product and the product is classified in
the heading under rule 1, of the GRI.
HOLDING:
Supreme Golden Corn Syrup containing glucose, caramel
coloring matter, and other components, is classified in
subheading 2106.90.9997, HTSUS, which provides for food
preparations not elsewhere specified or included...other...other:
containing sugar derived from sugar cane and/or sugar beet, with
a 1998 duty at the general rate of 7.6 percent ad valorem, and a
special free rate for Canada, if applicable.
NYRL 817784 is modified concerning the classification of the
product, Supreme Golden Corn Syrup.
In accordance with 19 U.S.C. 1625, this ruling will become
effective 60 days after its publication in the Customs Bulletin.
Publication of rulings or decisions pursuant to 19 U.S.C. 1625
does not constitute a change of practice or position in
accordance with section 177.10(c)(1), of the Customs Regulations
(19 CFR 177.10(c)(1)).
Sincerely,
John Durant, Director
Commercial Rulings Division
Office of Regulations and
Rulings