CLA-2 RR:CTF:TCM 967303 KBR
Simeon M. Kriesberg, Esq.
1909 K Street, N.W.
Washington, D.C. 20006-1101
RE: Modification of HQ 952419; A La Perruche Sugar Chunks
Dear Mr. Kriesberg:
This is in reference to HQ 952419, issued to you, on behalf of you client Bri-Al, Inc., by the U.S. Customs Service (now Customs and Border Protection (“CBP”)), on October 15, 1992. That ruling concerned the classification of A La Perruche white and brown sugar chunks under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). In HQ 952419, we determined that caramel added to brown sugar chunks was not added coloring and, therefore, the brown sugar chunks were classified in subheading 1701.11.0125, HTSUSA, as “Cane or beet sugar and chemically pure sucrose, in solid form: Raw sugar not containing added flavoring or coloring matter: Cane sugar.” We have reviewed HQ 952419 and determined that the classification provided for the brown sugar chunks is incorrect. Classification of the white sugar chunks was correctly stated in HQ 952419 and will not be addressed here.
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 (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published on January 25, 2006, in Vol. 40, No. 5 of the Customs Bulletin, proposing to modify HQ 952419. No comments were received in response to this notice.
FACTS:
The article consists of brown and white irregularly shaped sugar chunks sold under the name “A La Perruche”. The sugar chunks are created by first taking raw sugar and refining it through filtration, crystallization and maturation until the sugar agglomerates into bars. The brown sugar is produced by adding caramelized syrup made from the cane sugar during refining. The bars are broken into irregular lumps and are packaged into boxes which are imported into the United States for retail sale. You stated that the brown sugar has a polarity of 98.9 degrees. You also stated that the Department of Agriculture does not consider this product to be “Specialty Sugar” as defined in 15 C.F.R. § 2011.202(j).
ISSUE:
Whether the caramel added to the sugar chunks is considered coloring matter?
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) in accordance with the General Rules of Interpretation (GRIs). Under GRI 1, merchandise is classifiable 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 on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
In interpreting the headings and subheadings, CBP looks to the Harmonized Commodity Description and Coding System Explanatory Notes (EN). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUSA. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUSA provisions under consideration are as follows:
1701 Cane or beet sugar and chemically pure sucrose, in solid form:
Raw sugar not containing added flavoring or coloring matter:
1701.11 Cane sugar:
* * * * *
1701.11.1000 Described in additional U.S. note 5 to this chapter and entered pursuant to its provisions.
* * * * *
Other:
1701.91 Containing added flavoring or coloring matter:
Containing added coloring but not containing added flavoring matter:
* * * * *
1701.91.1000 Described in additional U.S. note 5 to this chapter and entered pursuant to its provisions.
Other.
* * * * *
1701.99 Other:
* * * * *
1701.99.10 Described in additional U.S. note 5 to this chapter and entered pursuant to its provisions.
At issue is the classification of brown sugar chunks. The sugar forming the chunks have caramelized sugar syrup added to change the color to a brown or amber shade.
Heading 1701 provides for cane or beet sugar and chemically pure sucrose, in solid form. The EN's to 1701 provide, in pertinent part that, "Cane sugar is derived from the juices of the sugar cane stalk." As the sugar chunks fit this description, they are classifiable in heading 1701.
At the six digit subheading level, 1701.11 provides for raw cane or beet sugar, not containing added flavoring or coloring matter, while 1701.91 provides for other cane and beet sugar, containing added coloring but not containing added flavoring matter and 1701.99 provides for other cane or beet sugar, other.
Subheading Note 1 to Chapter 17 states that:
For the purposes of subheadings 1701.11 and 1701.12, “raw sugar” means sugar whose content of sucrose by weight, in the dry state, corresponds to a polarimeter reading of less than 99.5 degrees.
The EN's to 1701 indicate that:
Raw or crude cane or beet sugars occur in the form of brown crystals, the colour being due to the presence of impurities. Their sucrose content by weight, in the dry state, corresponds to a polarimeter reading of less than 99.5°.... They are generally destined for processing into refined sugar products. Raw sugar may, however, be of such a high degree of purity that it is suitable for human consumption without refining.
Refined cane or beet sugars are produced by the further processing of raw sugar. They are generally produced as a white crystalline substance which is marketed in various degrees of fineness or in the form of small cubes, loaves, slabs, or sticks or regularly moulded, sawn or cut pieces.
In addition to the raw or refined sugars mentioned above, this heading covers brown sugar consisting of white sugar mixed with small quantities of, e.g. caramel or molasses, and sugar candy consisting of large crystals produced by slow crystallization of concentrated solutions of sugar.
* * * * *
The instant A La Perruche brown sugar chunks' sucrose content by weight, in the dry state, is 98.9 international sugar degrees. HQ 952419, citing Subheading Note 1 and Additional U.S. Note 1 to Chapter 17, HTSUSA, found that this indicated the product was raw sugar. We agree. However, in HQ 952419, because the caramelized syrup is itself a sugar product and it is commonly added to refined sugar in order to produce brown sugar, CBP found that the addition of caramelized syrup to the sugar was not considered adding coloring or flavoring. We disagree that the addition of the caramelized syrup is not added coloring.
The purpose of adding the caramelized syrup is to change the color of the sugar. Further, this issue was considered by the Harmonized System Committee of the World Customs Organization. In NC0728E1 (HSC/31) in November 2003 (Annex F/8 to Doc. NCO796E2), the Harmonized System Committee decided that the addition of a small quantity of caramel to produce brown sugar chunks was adding a coloring matter. Therefore, the Harmonized System Committee issued a Compendium of Classification Opinion which classified the brown sugar chunks under consideration in subheading 1701.91, HTSUSA. See HSC/33 Doc. NC0845B2, Annex M/5, May 2004.
As stated in T.D. 89-80, decisions in the Compendium of Classification Opinions should be treated in the same manner as the EN’s, i.e., while neither legally binding nor dispositive, they provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. T.D. 89-80 further states that EN’s and decisions in the Compendium of Classification Opinions "should receive considerable weight." See HQ 966328 (March 31, 2003). Therefore, because we find the caramelized syrup to be added coloring and because we find the Harmonized System Committee decision informative, we hold that the A La Perruche brown sugar chunks are classified in subheading 1701.91, HTSUSA, as “Cane or beet sugar and chemically pure sucrose, in solid form: Other: Containing added flavoring or coloring matter”.
HOLDING:
In accordance with the above discussion, the A La Perruche brown sugar chunks are classified in heading 1701, specifically in subheading 1701.91, HTSUSA, as “Cane or beet sugar and chemically pure sucrose, in solid form: Other: Containing added flavoring or coloring matter”. If the A La Perruche brown sugar chunks are as described in additional U.S. note 5 to Chapter 17 and entered pursuant to its provisions, the specific classification will be as subheading 1701.91.1000, HTSUSA, which provides for “Cane or beet sugar and chemically pure sucrose, in solid form: Other: Containing added flavoring or coloring matter: Containing added coloring but not containing added flavoring matter: Described in additional U.S. note 5 to this chapter and entered pursuant to its provisions.” The 2006 column one, general rate of duty is 3.6606 cents per kilogram less 0.020668 cents per kilogram for each degree under 100 degrees (and fractions of a degree in proportion) but not less than 3.143854 cents per kilogram. If not described in additional note 5 to Chapter 17 and not entered pursuant to its provisions, the applicable classification will be in subheading 1701.91.3000, HTSUSA, as “Cane or beet sugar and chemically pure sucrose, in solid form: Other: Containing added flavoring or coloring matter: Containing added coloring but not containing added flavoring matter: Other.” The 2006 column one, general rate of duty is 35.74 cents per kilogram. In addition, products classified under subheading 1701.91.3000, HTSUSA, may be subject to additional duties based on their value as described in subheadings 9904.17.08 to 9904.17.16, HTSUSA. 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 www.usitc.gov/tata/hts.
EFFECT ON OTHER RULINGS:
HQ 952419 dated October 15, 1992, is modified as to the classification under the HTSUSA of the A LA Perruche brown sugar chunks. In accordance with 19 U.S.C. §1625(c), this ruling will become effective sixty (60) days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division