CLA-2: OT:RR:CTF:TCM H053755 MG
Terry A. Gleason
Baker & McKenzie LLP
815 Connecticut Avenue, NW
Washington, DC 20006-4078
RE: Revocation, in part, of NY N024368, dated March 20, 2008; tariff classification of chili powder blends
Dear Ms. Gleason:
This is in response to your letter, dated January 21, 2009, in which you have requested reconsideration on behalf of your client, McCormick & Company, Inc., of New York Ruling Letter (NY) N024368, dated March 20, 2009, as it pertains to the classification under the Harmonized Tariff Schedule of the United States (“HTSUS”), of two of the six different chili powder blends used in soup-style chili and other seasoning packets. On June 22, 2009, an organoleptic test of the six different chili powder blends was conducted in our office. Based on such test and in accordance with your request for reconsideration and revocation, in part, of NY N024368, CBP has reviewed the classification of Samples 2 and 4 and has determined that the cited ruling is in error. For the reasons set forth in this ruling, we are revoking NY N024368. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, a notice of proposed action was published on August 29, 2012, in the Customs Bulletin, Vol. 46, No. 36. No comments were received.
FACTS:
In NY Ruling N024368, CBP considered the classification of six different chili powder blends used in soup-style chili and other seasoning packets. Sample 1 consisted of a blend of chili pepper and sylox (i.e., silicon dioxide) and was classified in subheading 0904.20.76, HTSUS (now 0904.22.76, HTSUS, 2012) as “fruits of the genus Capsicum…dried or crushed or ground…other: ground: other.”
Samples 2 through 6 consisit of blends of chili pepper, sylox, and a combination of either salt, garlic, onion, cumin, oregano or oleo capsicum. NY N024368 classified samples 2 through 6 as “mixed condiments and mixed seasonings…other” under subheading 2103.90.80, HTSUS.
All six of the blends are designed for use in items such as chili packets for soup-style chili and other seasoning packets. As McCormick did in its initial ruling request, we were provided with six samples of the different chili powder blends. We were able to taste all six samples consisting of the ground pepper fruits of the genus Capsicum blended with one or more ingredients. Similar to Sample 1, Samples 2 and 4 contain significant amounts of chili pepper powder and a small amount of silicon dioxide. In addition to chili pepper powder and silicon dioxide, Sample 2 contains small quantities of salt and garlic, and Sample 4 contains small quantities of salt, garlic, onion and cumin. Their respective compositions are indicated below, with numerical percentages (ranges) by weight shown in parentheses following each ingredient. Sample #1 ("Chili Powder") consists of chili pepper (94-99) and Sylox (silicon dioxide) (1-5). Sample #2 ("Chili Powder") consists of chili pepper (80-90), Sylox (1-5), garlic (5-10), and salt (1-5). Sample #4 ("Chili Powder") consists of chili pepper (80-90), Sylox (1-5), garlic (1-5), onion (1-5), salt (1-5), and cumin (1-5).
As detailed in the chart contained in your letter, which has been afforded confidential treatment, you submit that NY Ruling N024368 warrants reconsideration with respect to the two chili powder blends identified as Samples 2 and 4. Specifically, that Sample 2 is properly classifiable under subheading 0904.20.76, HTUS, (now 0904.22.76, HTSUS), as “Fruits of the genus Capsicum…crushed or ground: [o]f the genus Capsicum (including cayenne Pepper, paprika and red pepper): Other” and that Sample 4 is properly classifiable under subheading 0910.91.00, HTUS, as a spice mixture referred to in Note 1(b) of Chapter 9.
ISSUES: 1) Whether a chili powder blended with salt, garlic, pepper and a flow-agent is classified in heading 0904, HTSUS, as a chili powder or in heading 2103, HTSUS, as a mixed seasoning.
2) Whether a chili powder blended with onion and other ingredients is classified in heading 0910, HTSUS, as a spice mixture or in 2103, HTSUS, as a mixed seasoning.
LAW AND ANALYSIS: Classification of goods under the HTSUS is governed by the GRI. GRI 1 provides that classification shall be determined 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 may then be applied.
The HTSUS provisions under consideration are as follows:
0904 Pepper of the genus Piper; dried or crushed or ground fruits of the genus Capsicum (peppers) or of the genus Pimenta (e.g., allspice):
0904.22 Crushed or ground:
Of the genus Capsicum (including cayenne Pepper, paprika and red pepper):
0904.22.20 Paprika
0904.22.76 Other
* * *
0910 Ginger, saffron, tumeric (curcuma), thyme, bay leaves, curry and other spices:
0910.91.00 Mixtures referred to in note 1(b) to this chapter
* * *
2103 Sauces and preparations therefor; mixed condiments and mixed seasonings; mustard flour and meal and prepared mustard:
2103.90 Other:
Mixed condiments and mixed seasonings:
2103.90.80 Other
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the HTSUS. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is Customs and Border Protection (CBP) practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
Note 1 to Chapter 9 of the HTSUS provides:
Mixtures of the products of headings 0904 to 0910 are to be classified as follows:
Mixtures of two or more of the products of the same heading are to be classified in that heading;
Mixtures of two or more of the products of different headings are to be classified in heading 0910.
The addition of other substances to the products of headings 0904 to 0910 (or to the mixtures referred to in paragraph (a) or (b) above) shall not affect their classification provided the resulting mixtures retain the essential character of the goods of those headings. Otherwise such mixtures are not classified in this chapter; those constituting mixed condiments or mixed seasonings are classified in heading 2103.
The General EN to Chapter 9 of the HTSUS similarly provides that the addition of other substances to the products of heading 09.04 to 09.10, or to mixtures of two or more products of the same or different headings, does not affect their classification provided the resulting mixtures retain the essential character of the goods falling in those headings. The General EN continues:
This applies, in particular, to spices and mixed spices containing added:
(a) Diluents (“spreader” bases) added to facilitate measuring out of the spices and their distribution in the food preparation (cereal flour, ground rusk, dextrose, etc.).
(b) Food colourings (e.g., xanthophyll).
(c) Products added to intensify or enhance the flavour of the spices (synergetics), such as sodium glutamate.
(d) Substances such as salt or chemical antioxidants added, usually in small quantity, to preserve the products and prolong their flavouring powers.
Spices (including mixed spices) containing added substances of other Chapters, but themselves having flavouring or seasoning properties, remain in this Chapter provided the added quantity does not affect the essential character of the mixture as a spice.
Therefore, for Samples 2 and 4 to be classified in Chapter 9, the addition of non-Chapter 9 ingredients must not change the essential character of the chili powder blends. As such, if the instant merchandise is classifiable in Chapter 9, it can not be described as a mixed seasoning of heading 2103, HTSUS.
I - Sample 2
As indicated above, Sample 2 is a blend of chili pepper, silicon dioxide, salt and garlic. Under Note 1 and the General EN, the addition of small quantities of silicon dioxide does not preclude the chili powder blend from being classified in heading 0904, HTSUS, Chapter 9 or subheading 0904.22.76, HTS. In this regard, the silicon dioxide acts as a “diluent” within the meaning of the General EN 2 (a), as it is used as a flow or anti-caking agent in many powdered foods.
Similarly, the addition of small quantities of salt and garlic to the chili pepper does not alter the essential character of the chili powder as a significant majority of Sample 2’s weight and nearly all of its value are attributable to the chili pepper ingredient. See General Explanatory Note 2 (d).
In NY B88084, dated August 18, 1997, CBP classified an Ethiopian spice mixture in subheading 0904.20.76, HTSUS. The Ethiopian spice mixture, identified as “Mitmita,” is described as an orange powder made from a base of hot red pepper with garlic and salt. Also, in NY M82914, dated May 8, 2006, CBP classified “Pepper Blend Seasoning,” which was composed of black pepper, red pepper and sugar in subheading 0904.20.76, HTSUS.
In NY Ruling C87704, dated June 9, 1998, CBP classified a black pepper blend containing 45 grams of pepper and 45 grams of salt in subheading 0904.12.00, HTSUS. In this regard, the weight and value of the chili pepper found in Sample 2 (80-90) far exceeds the 50% content of the black pepper blend in this ruling.
Consistent with our position in the previous rulings, we find that Sample 2 is properly classified under heading 0904, HTSUS, specifically, in subheading 0904.22.76, HTSUS, the provision for as “Fruits of the genus Capsicum…crushed or ground: [o]f the genus Capsicum (including cayenne Pepper, paprika and red pepper): Other.”
II - Sample 4
Sample 4 is a blend of chili pepper, cumin, silicon dioxide, salt, garlic, and onion. Pursuant to Note 1(b) of Chapter 9, you submit that Sample 4 is classified under subheading 0910.91.00, HTSUS. Chili pepper and cumin are both classifiable under different Chapter 9 tariff provisions. As indicated above, chili pepper is properly classified as a spice under subheading 0904.20, HTSUS. Cumin is also classified as a spice under subheading 0909.30, HTSUS.
In NY Ruling B88084, we considered the classification of an Ethiopian spice mixture identified as “Berbere.” The Berbere is described as a reddish-orange powder made from a base of hot red pepper to which garlic, salt and ginger (also classified in Chapter 9) were added. We ruled that the Berbere was classified as a spice mixture of subheading 0910.91.00, HTSUS. In NY 837417, dated March 13, 1989, we classified a spice mixture identified as “Instant Masala” under subheading 0910.91.00, HTSUS. The Instant Masala consisted of cumin seeds, coriander seeds, rock and table salt, red and black pepper, cloves, nutmeg, cinnamon, cardamom, black cardamom, bay leaves and ginger, all Chapter 9 ingredients, except for the salt. In these rulings, the presence of salt and garlic in the Berbere or the presence of the rock and table salt in the Instant Masala did not affect the essential character of these products as spice mixtures of subheading 0910.91.00, HTSUS.
In NY Ruling J86543, dated July 8, 2003, we classified “Ras el Hanout Powder”, which consisted of 25 percent caraway (Chapter 9), 15 percent cumin (Chapter 9), 15 percent coriander (Chapter 9), 10 percent fenugreek (Chapter 9), 10 percent salt (non-Chapter 9), 10 percent curcuma/turmeric (Chapter 9), 5 percent mace (Chapter 9), 5 percent cinnamon (Chapter 9) and 5 percent cloves (Chapter 9), in subheading 0910.91.00, HTS. See NY J86543, dated July 8, 2003. Thus, CBP did not find the salt content of 10 percent significant enough to alter the essential character of the Ras el Hanout Powder as a spice mixture of subheading 0910.91.00, HTSUS.
In some instances, CBP has generally classified the dry mixtures as mixed condiments or mixed seasonings under subheading 2103.90.80, HTSUS. For example, in NY Ruling N003779, dated December 28, 2006, CBP classified a dry mixture identified as “Southern Comfort Jambalaya Flavored Cajun BBQ Rub” in subheading 2103.90.80, HTSUS. This mixture consisted of 42.52 percent red pepper, 30.48 percent rosemary (non-Chapter 9), 10.35 percent cinnamon, 9.15 percent onion powder (non-Chapter 9), 3.15 percent garlic powder (non-Chapter 9), 2.48 percent salt (non-Chapter 9) and 1.87 percent black pepper.
Similarly, in NY Ruling I87879, dated October 31, 2002, we classified McCormick’s dry mixture “Product No. 91888 – R0888 US Chili Seasoning” in subheading 2103.90.80, HTSUS. And, in NY Ruling I85460, dated September 16, 2002, we classified McCormick’s dry mixture “Cajun Seasoning No. 96943” under subheading 2103.90.8000, HTSUS.
Also, in NY I87253, dated October 21, 2002, we classified McCormick’s “Chili Limon Seasoning.” In this ruling, where at least 50 percent of the ingredients were classified outside of Chapter 9, CBP classified the product as a mixed seasoning under 2103.90.8000, HTSUS.
You argue that sample 4 is a mixture of two products of different Chapter 9 headings and that the presence of small quantities of other non-Chapter 9 ingredients do not affect the essential character of Sample 4 as a spice mixture of Chapter 9. We find that (like Sample 2) the silicon dioxide in Sample 4 acts as a diluent, which does not alter the essential character of the Sample. We further find that the addition of small quantities of salt, garlic and onion (which comprise 5-10 percent of the blended product by weight and less than 1-5 percent of its value) does not alter the essential character of Sample 4 as a Chapter 9 spice mixture and that the two Chapter 9 spices comprise a substantial majority of Sample 4’s weight and value. See Note 1(b) to Chapter 9 and the General EN 2(a) and (d).
The Chapter 21 seasonings referenced in the above cited rulings possess very high percentages of ingredients classified outside of Chapter 9. In this regard, the instant Samples 2 and 4 retain the essential character of a spice in heading 0904 HTSUS and 0910, HTSUS, respectively. Based on the above-cited Chapter Note, General Explanatory Note and prior CBP rulings, we find that samples 2 and 4 are classified as Chapter 9 spice mixtures, and not as mixed seasonings classifiable under heading 2103, HTSUS. Specifically, Sample 4 is classified in subheading 0910.91.00, HTSUS, as “Ginger, saffron, tumeric (curcuma), thyme, bay leaves, curry and other spices: Mixtures referred to in note 1(b) to this chapter.”
HOLDING:
Accordingly, we find that Sample 2 “Chili Powder" consisting of chili pepper, Sylox, garlic and salt is classified in subheading 0904.22.76, HTSUS, as “Fruits of the genus Capsicum…crushed or ground: [o]f the genus Capsicum (including cayenne Pepper, paprika and red pepper): Other.” The general, column one rate of duty is 5 cents per kilogram, ad valorem. We further find that Sample 4 "Chili Powder" consisting of chili pepper, Sylox, garlic, onion, salt, and cumin is classified in subheading 0910.91.00,
HTSUS, as “Ginger, saffron, tumeric (curcuma), thyme, bay leaves, curry and other spices: Mixtures referred to in note 1(b) to this chapter.” The general, column one rate of duty is 1.9%, ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web, at http://www.usitc.gov.tata/hts/.
EFFECT ON OTHER RULINGS:
NY Ruling N024368, dated March 20, 2008 is hereby revoked in part.
In accordance with 19 U.S.C. 1625 (c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division