CLA-2 RR:CR:GC 963668K
963698K

1702.60.4090; 2106.90.7800; 2106.90.8000; 9906.21.50-9906.21.52;
2106.90.95; 2106.90.9700; 2106.90.9973;

Mr. John M. Peterson
Mr. Curtis W. Knauss
Neville, Peterson & Williams
Counsellors At Law
80 Broad Street, 34th Floor
New York, N.Y. 10004

RE: “KLASS Aguas Frescas” Flavored Powdered Drink Mixes

Gentlemen:

In your letters of December 13, 1999 (our case # 963668) and January 7, 2000 (our case # 963698), you requested classification rulings for six powdered flavored drink mixes manufactured in Mexico. The six samples submitted for 963668 appear to be identical to the corresponding samples for 963698, including the names of the mixes contained in 1.2 oz retail packages and the ingredients listed thereon. Each sample lists “sugar” as an ingredient. Otherwise, the sugar (or sweetener) is not described as “sucrose”, “dextrose” or “fructose”. Your submission of December 13, 1999, for # 963668, indicated that each of the six mixes contained sugar (sucrose). However, in the translated Attachment 6, dated March 27, 1998, submitted with your letter of May 9, 2000, refers to sugar (fructose). In your letter of January 7, 2000 for # 963698, dextrose is indicated as an ingredient for each of the samples. Our response will cover the classification for all three contingencies. This response assumes that the goods are products of Mexico but the response is not determinative as to whether the goods qualify as NAFTA originating goods from Mexico under General Note 12, Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

“Klass Aguas Frescas” is described as a family of flavored beverage mixes imported in powdered form packaged for retail trade with instructions for the consumer

to merely add 1.1 quarts of cold water, add sugar to taste and stir. A description for each of the powered drinks for # 963668 follows.

“Tamarindo” is stated to contain 87.2244% refined sugar (sucrose), 6.5430% citric acid, 2.0571% maleic acid, 1.3142% tamarind flavor, 1.1428% guar gum 60/70, 0.8000% acidulant/antihumectant, 0.6000& caramel color, 0.1313% tamarind flavor (2), 0.0944% vitamin C, 0.0685% titanium dioxide, 0.0206% food coloring-Yellow No. 5, and 0.0037% food coloring-Red No. 40.

“Jamaica” contains 86.0279% refined sugar (sucrose), 8.6857% citric acid, 2.8571% Jamaica extract, 0.9142% Jamaica flavor, 0.8000% acidulant/antihumectant, 0.4517% sodium citrate, 0.1611% food coloring-Red No. 40, 0.0944% vitamin C and 0.0025% food color-Blue No.1.

“Horchata” contains 66.9129% refined sugar (sucrose), 15.0000% rice flour, 14.0000% condensed milk substitute (no further description of the condensed milk substitute was provided, but the ingredients listed on the package refers to low fat milk powder), 1.5000% acidulant/antihumectant, 0.7000% guar gum 60/70, 0.40000% Enturbiante (clouding agent), 0.2500% titanium dioxide and 0.0944% vitamin C.

“Guayaba” contains 90.1011% refined sugar (sucrose), 2.700% citric acid, 2.000% maleic acid, 1.8000% guar gum, 1.1428% guayaba flavor, 0.6000% acidulant/antihumectant, 0.4000% “Avena” flour, 0.2857% guayaba flavor (2), 0.2857% “Parchita” flavor, 0.2000% sodium citrate, 0.2000% Enturbiante, 0.1000% guayaba extract, 0.0944% vitamin C, 0.8000% titanium dioxide, 0.0066% food color-Red No. 40, and 0.0037% food color-Yellow No.5.

“Fresa” contains 89.3747% refined sugar (sucrose), 6.2857% citric acid, 1.3428% flavor “Fresa” (strawberry), 0.6600% sodiumcitrate, 0.6000% acidulant/antihumectant, 0.4400% guar gum 60/70, 0.4000% “Avena” flour, 0.3513% Enturbiante, 0.2752% caramel color, 0.1000% strawberry extract, 0.0944% vitamin C, 0.0449% food coloring-Red No. 40, 0.0300% food coloring-Laca Red No. 40 and 0.0010% food coloring-Blue No. 1.

“Mango” contains 91.0251% refined sugar (sucrose), 2.500% guar gum, 2.000% maleic acid, 0.9428% citric acid, 0.8700% mango flavor, 0.6000% acidulant/antihumectant, 0.6000% sodium citrate, 0.5800% “Duranzo” flavor, 0.3000% Enturbiante, 0.1500% titanium dioxide, 0.1000% mango extract, 0.0944% vitamin C, 0.0800% color-Laca yellow No. 5, 0.0746% caramel color, 0.0471% food color-Yellow No. 5, 0.0229% food color-Laca Yellow No. 6 and 0.0131% food color-Yellow No. 6.

In addition, for # 963668, the translated Attachment 6, dated March 27, 1998, submitted with your letter of May 9, 2000, refers to the mixes as containing sugar

(fructose), as follows:

Identification of the Merchandise: A powder consisting of a mix or raw materials; Sugar (fructose) 85% and acidulants, artificial colors and flavors, natural colors, fruit extracts, vitamin C, anticaking agents, stabilizers and other additives 18%. The product is available in 6 flavors; horchata, jamaica, tamarindo, fresa (strawberry), mango, and guayaba and in envelopes of 36 grams and 500 grams each.

The powdered mixes containing fructose are similar to the mixes for sucrose described above and, for all practicable purposes, the only difference in the mixes is the sugar ingredient.

A description for each of the powered drinks for # 963698 follows with dextrose listed as the sugar ingredient.

“Tamarindo” is stated to contain 75.58% sugar (dextrose), 13.0433% citric acid and maleic acid, 3.3734% tamarind flavor, 2.6666% guar gum 60/70, 3.5000% acidulant/antihumectant, 1.4000% caramel color, 0.2200% vitamin C, 0.1600% titanium dioxide, 0.0480% food coloring-Yellow No. 5 and 0.0087% food coloring-Red No. 40.

“Jamaica” contains 81.1580% sugar (dextrose), 13.1733% citric acid/fumaric acid, 2.1333% Jamaica flavor, 1.8667% acidulant/antihumectant, 1.0667% sodium citrate, 0.3760% food coloring-Red No. 40, 0.2200 vitamin C and 0.0060% food color-Blue No.1.

“Horchata” contains 83.0300% sugar (dextrose), 1.4667% rice flour, 4.4000% condensed milk substitute, 3.5000% acidulant/antihumectant, 1.6667% guar gum 60/70, 0.9333% Enturbiante, 0.5833% titanium dioxide and 0.2200% vitamin C.

“Guayaba” contains 79.5927% sugar (dextrose), 7.6767% citric and fumaric acids, 4.2000% guar gum, 2.6667% guayaba flavor, 2.0000% acidulant/antihumectant, 0.9333% “Avena” flour, 0.6666% guayaba flavor (2), 0.6666% “Parchita” flavor, 0.4667% sodium citrate, 0.4667% Enturbiante, 0.2333% guayaba extract, 0.2200% vitamin C, 0.1867% titanium dioxide, 0.0153% food color-Red No. 40 and 0.0087% food color-Yellow No. 5.

“Fresa” contains 79.7393% sugar (dextrose), 9.5333% citric acid/fumaric acid, 3.1333% flavor “Fresa” (strawberry), 1.5400% sodium citrate, 2.0000% acidulant/antihumectant, 1.0267% guar gum 60/70, 0.9333% “Avena” flour, 0.8200% Enturbiante, 0.6420% caramel color, 0.2333% strawberry extract, 0.2201% vitamin C, 0.1067% food coloring-Red No. 40, 0.0700% food coloring-Laca Red No. 40 and 0.0020% food coloring-Blue No. 1.

“Mango” contains 80.3553% sugar (dextrose), 5.8333% guar gum, 4.8067% citric and fumaric acids, 2.2000% mango flavor, 1.6667% acidulant/antihumectant, 1.4000% sodium citrate, 0.7000% Enturbiante, 0.3 500% titanium dioxide, 0.2200% vitamin C, 1.8667% color-Laca yellow No. 5, 0.1740% caramel color, 0.1100% food color-Yellow No. 5, 0.0533 food color-Laca Yellow No. 6 and 0.03 07% food color-Yellow No. 6.

The sugar content for all of the flavored powdered drink mixes, whether of sucrose, fructose or dextrose, ranges from 79 % to 90%.

ISSUE:

Whether the flavored powdered drink mixes as described above are classified in heading 2106, HTSUS, as claimed. LAW AND ANALYSIS:

The classification of imported merchandise under the HTSUS is governed by the principles set forth in the General Rules of Interpretation (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’s, taken in their appropriate order. Accordingly, we first have to determine whether the articles are classified under GRI 1.

Heading 1701at the six digit level, 1701.91, provides for cane or beet sugar and chemically pure sucrose, in solid form containing added flavoring or coloring matter.

Heading 1702, HTSUS, provides for other sugars (that is, sugars other than those classified in heading 1701), including chemically pure lactose, maltose, glucose and fructose, in solid form. The heading also provides for sugar syrups, not containing added flavoring or coloring matter. Sugar syrups are not involved in this case. The heading excludes sugar syrups containing added flavoring or coloring matter but does not exclude other sugars containing added flavoring or coloring matter.

Heading 2106 provides for food preparations not elsewhere specified or included. The mixes may be classified in heading 2106 by virtue of GRI 1 provided that they are not elsewhere specified or included in other headings of the tariff. We are satisfied that all of the articles are classified by virtue of GRI 1.

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 General Rules of Interpretation of the HTSUS. In Bausch & Lomb, Inc., v. U.S., 21 CIT 166, 957 F. Suppl. 281 (1997), the Court stated that

Although the Explanatory Notes are not dispositive or binding on the Court , they “offer guidance in interpreting [HSTUS] subheadings ” Mita Copystar Amer. V. United States, 14 Fed Cir. (T) 66… As the Joint Committee on the Omnibus Trade and Competitiveness Act of 1988 stated: 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…[and ] are generally indicative of the proper interpretation of the various provisions of the Convention….

The Courts have consistently followed the EN’s for guidance in interpreting the HTSUS when the EN’s are persuasive and specifically include or exclude an item from a tariff heading as it did in Bausch & Lomb, supra, and refused to do so when the EN’s are not persuasive. See also, Lynteq, Inc. v. U.S., 10 Fed. Cir. (T) 112 (1992), North American Processing Co. v. U.S., CIT, Slip OP. 98-13 (1998) and Sabritas, S.A. De C.V and Frito-Lay, Inc., v. U.S., CIT, Slip Op. 98-14 (1998).

The EN’s for heading 2106, state that “powders which have the character of flavoured or coloured sugars used in the preparation of lemonade and the like fall in heading 17.01 or 17.02 as the case may be”. As noted above, heading 1702, unlike sugar syrups, does not exclude other sugars in solid forms (including powders) containing added flavoring or coloring matter. The EN's for heading 2106 further state that the heading includes “preparations for the manufacture of lemonades or other beverages, consisting, for example of; flavored or coloured syrups, being sugar solutions with natural or artificial substances added to give them the flavor of, for example, certain fruits or plants (raspberry, blackcurrant, lemon, mint, etc), whether or not containing added citric acid and preservatives.” We have consistently held in our rulings that the EN’s for heading 2106 are persuasive and specifically excludes from heading 2106 other sugars in solid form containing flavoring and colored matter that are classified in headings 1701 and 1702. See New York Ruling Letters (NYRL) A89697 dated 11/27/96, B86542 dated 6/11/97, D83345 dated 10/27/98, D80530 dated 8/7/98, A86301 dated 8/19/96, and DD870722 dated 2/4/92. See also, Headquarters Ruling Letters 083698 dated 6/1/89, 083940 dated 7/5/89, 084927 dated 10/3/89, 085590 dated 11/29/89, 955641 dated 3/8/94, and 956823 dated 8/8/94. These rulings also contained similar added ingredients as in the Klass Aguas Frescas drink mixes.

With the exception of the “Horchata” drink mixes, all of the other drink mixes described above are classifiable in headings1701 and 1702.

HOLDINGS:

“Tamarindo”, “Jamaica”, “Guayaba”, “Fresa”, and “Mango”, Klass Aguas Frescas powdered mix drinks, all of which contain more than 10% cane or beet sucrose (66% to 91%) and added flavoring and coloring matter, put up in retail trade packages, are classified in subheading 1701.91.54, HTSUS, if within the quantitative limitations of additional U.S. Note 8, Chapter 17, and entered pursuant to its provisions, but the note excludes products from Mexico. Such products from Mexico are classified in subheading 1701.91.58, an over the tariff rate quota provision. Subheading 1701.91.58, also provides for special rates of duties (see subheadings 9906.17.39-9906.17.41), for products from Mexico if they qualify as NAFTA originating goods under General Note 12, HTSUS, and in compliance with the applicable regulations.

If the above five drink mixes contain 85% of fructose (rather than sucrose), they are classified in subheading 1702.60.4090, HTSUS, as other fructose sugars and fructose syrups containing in the dry state more than 50% by weight of fructose, not subject to tariff rate quotas and if they qualify as NAFTA originating goods under General Note 12, HTSUS, they are classified under the special rates of duties applicable for Mexico.

If the above five drink mixes contain 75% to 83% of dextrose, they are classified in subheading 1702.30.4080, HTSUS, as other sugars, other glucose and glucose syrups, not containing fructose or containing in the dry state less than 20% by weight of fructose, not subject to tariff rate quotas; and, if they qualify as NAFTA originating goods from Mexico under General Note 12, HTSUS, they are classified under the special rates of duties for subheading 1702.30.4080, HTSUS.

The “Horchata” mix, in retail packages, containing over 10% cane or beet sucrose and containing 14% condensed milk substitute, is classified, if the condensed milk substitute consists of milk solids, as other food preparations not elsewhere specified or included, containing over 10% by dry weight of milk solids and over 10% by weight of cane or beet sugars, in subheading 2106.90.78, HTSUS, subject to the quota limitations of Additional U.S. Note 8, of Chapter 17, but the note excludes products from Mexico. Such products from Mexico are classified in 2106.90.8000, HTSUS, an over the tariff rate quota provision. Subheading 2106.90.8000, also provides for special rates of duties (see subheadings 9906.21.50-9906.21.52) for products from Mexico that qualify as NAFTA originating goods under General Note 12, HTSUS. If the articles do not contain over 10% milk solids, they are classified as other food preparations not elsewhere specified or provided for, containing over 10% by dry weight of cane or beet sugars, in subheading 2106.90.95, HTSUS, if within the quantitative limitations of Additional U.S. Note 8 to Chapter 17, but the note excludes products from Mexico. Such products from Mexico are classified in subheading 2106.90.97, HTSUS, and over the tariff rate quota provision. Subheading 2106.90.97, also provides for special rates

of duties (see subheadings 9906.21.50-9906.21.52) for products from Mexico that qualify as NAFTA originating goods under General Note 12, HTSUS.

The “Horchata” mix in retail packages, as a product of Mexico, containing 83% dextrose or fructose rather than cane or beet sucrose, is classified as other food preparations for the manufacture of beverages, not elsewhere specified or included, in subheading 2106.90.9973, HTSUS, not subject to tariff rate quotas.

Sincerely,

John Durant, Director
Commercial Rulings Division