CLA-2 RR:CR:GC 965859ptl
Ms. Diana L. Kepler
Panalpina, Inc.
2461 Directors Row
Indianapolis, IN 46241
RE: Revocation of NY I83832; Fruit Fillings for Baked Goods.
Dear Ms. Kepler:
In New York Ruling Letter (NY) I83832, dated July 1, 2002, which was issued to you on behalf of Sensient Flavors, Inc., products described as fruit fillings for baked goods were classified in Harmonized Tariff Schedule of the United States (HTSUS) subheadings 2106.90.9500 or 2106.90.9700. These subheadings are quota provisions. The first provides for food preparations not elsewhere specified or included ... other ... other ... articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17 ... described in additional U.S. note 8 to chapter 17 and entered pursuant to its provisions. The second subheading is an over-quota subheading and is to be used when the quantitative limits of additional U.S. note 8 to chapter 17 have been reached. We have reviewed the classification of the fruit fillings for baked goods contained in NY I83832, and have determined that they are incorrect. For the reasons provided below, Customs now believes the correct classification of the fruit fillings for baked goods is subheading 2106.90.9997, HTSUS, a non-quota provision which provides for other food preparations not elsewhere specified or included ... other ... other, containing sugar derived from sugar cane and/or sugar beets.
Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed revocation of NY I83832 was published on January 22, 2003, in the Customs Bulletin, Volume 37, Number 4. No comments were received.
FACTS:
The subject goods are described as fruit fillings that will be imported in 2000 to 2400-pound plastic totes and used as the filling for baked products. There are six varieties of the product: apple, strawberry, raspberry, strawberry-kiwi, peach-apricot, and apple-cinnamon. Common ingredients to all varieties are: sugar (over 10 percent, by dry weight), glucose, dextrose, water, modified starch corn or tapioca), pectin, dehydrated apples and/or apple powder, and citric acid. Other ingredients, depending on the variety, are strawberries, raspberries, kiwi, peaches, apricots, fruit juice concentrate, spice, natural or artificial flavor, color, salt, malic acid, lecithin, canola oil, potassium sorbate, and sodium benzoate.
ISSUE:
What is the classification of fruit fillings for baked goods?
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, 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 GRIs may then be applied in order.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS headings under consideration are as follows:
2106 Food preparations not elsewhere specified or included
2106.90 Other:
Other:
Other:
Other:
Other:
Articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17:
2106.90.9500 Described in additional U.S. note 8 to chapter 17 and entered pursuant to its provisions
2106.90.9700 Other 3/
2106.90.99 Other
2106.90.9997 Containing sugar derived from sugar cane and/or sugar beets
3/ See subheadings 9904.17.49-9904.17.65.
Because the goods in question contain over 10 percent, by weight, sugar derived from sugar cane or sugar beets, they are potentially subject to the tariff rate quota described in chapter 17, additional U.S. note 3.
Additional U.S. note 3 to chapter 17 reads as follows:
"3. For the purposes of this schedule, the term "articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17" means articles containing over 10 percent by dry weight of sugars derived from sugar cane or sugar beets, whether or not mixed with other ingredients, except (a) articles not principally of crystalline structure or not in dry amorphous form, the foregoing that are prepared for marketing to the ultimate consumer in the identical form and package in which imported; (b) blended syrups containing sugars derived from sugar cane or sugar beets, capable of being further processed or mixed with similar or other ingredients, and not prepared for marketing to the ultimate consumer in the identical form and package in which imported; (c) articles containing over 65 percent by dry weight of sugars derived from sugar cane or sugar beets, whether or not mixed with other ingredients, capable of being further processed or mixed with similar or other ingredients, and not prepared for marketing to the ultimate consumer in the identical form and package in which imported; or (d) cake decorations and similar products to be used in the same condition as imported without any further processing other than the direct application to individual pastries or confections, finely ground or masticated coconut meat or juice thereof mixed with those sugars, and sauces and preparations therefor." (Emphasis added)
As highlighted above, exception (d) to goods included in the quota provides for "cake decorations and similar products to be used in the same condition as imported without any further processing other than the direct application to individual pastries or confections." This phrase has been the subject of earlier Customs rulings. In HQ 956100, dated February 7, 1995 and HQ 956246, dated July 25, 1994, Customs stated:
... the phrase 'cake decorations and similar products to be used in the same condition as imported without further processing other than the direct application to individual pastries and confections' means
1) products used in their imported condition to coat or fill pastries or confections, or 2) products used to coat or fill pastries or confections after a change in form (e.g., melting or heating, reduction in size), insofar as the product itself need not undergo a necessary, additional preparation, treatment, or manufacture nor a blending or combining with any ingredients, in order to become a finished product.
You have stated that the goods under consideration are to be used as fruit fillings in bakery applications. As such, the goods fall within exception (d) to the quota. They are used in their imported condition, without further processing or mixing with other ingredients, and are used as filling for a pastry product, a cookie. As such, the product should be classified in the non-quota subheading 2106.90.9997, HTSUS. This classification is consistent with NY B86009, dated June 18, 1997, which classified a similar cookie filling in that subheading.
HOLDING:
Fruit fillings containing over 10 percent sugar from sugar cane or sugar beets which are imported in bulk containers and which are used without further processing as fillings for baked cookies are classified in subheading 2106.90.9997, HTSUS, which provides for food preparations not elsewhere specified or included, fruit fillings, other, other, other, other, other, other, containing sugar derived from sugar cane and/or sugar beets.
EFFECT ON OTHER RULINGS:
NY I83832, dated July 1, 2002, is hereby revoked. 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 Rulings Division
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