CLA-2 OT:RR:CTFD:TCM H030205 AvH
Mr. Shachar Gat
Shonfeld’s USA, Inc.
3100 S. Susan Street
Santa Ana, CA 92704
RE: Classification of BBQ Shake Seasoning from China; Modification of NY M83880
Dear Mr. Gat:
This letter is to inform you that U.S. Customs and Border Protection (CBP) has reconsidered New York Ruling letter (NY) M83880, issued to you on June 28, 2006. In NY M83880, we determined that BBQ Shake seasoning was classified under subheading 2103.90.8000, of the Harmonized Tariff Schedule of the United States (HTSUS), as “mixed condiments and mixed seasonings . . . other . . . other . . . other.” CBP has determined that NY M83880 is incorrect.
Notice of the proposed action was published in the Customs Bulletin, Vol. 44, No. 24, on June 9, 2010. No comments were received in response to the notice.
FACTS:
NY M83880 concerned item no. BBQ-218995, which was comprised of a 250 ml bottle of BBQ Marinade sauce, two small metal shakers containing a BBQ Shake seasoning, and a metal rack. However, only the BBQ Shake seasoning is at issue in this reconsideration.
The BBQ Shake seasoning was described in NY M83880 as follows:
The BBQ Shake seasoning is a dry mix consisting of 30 percent salt, 30 percent sugar, 20 percent paprika, 10 percent red chili flake, 5 percent black pepper corn, 5 percent mustard seed, and less than 1 percent coloring, put up in a metalized pouch.
ISSUE
Is the BBQ Shake seasoning classifiable under subheading 2103.90.8000, HTSUS, or subheading 2103.90.7400 and 2103.90.7800, the in- and over-quota provisions for mixed condiments and mixed seasonings described in additional U.S. note 3 to chapter 21?
LAW AND ANALYSIS
Classifications under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule at 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 Harmonized Commodity Description and Coding System Explanatory Notes (EN’s) represent the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI. The EN’s, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings.
The HTSUS provisions under consideration in this case are as follows:
2103 Sauces and preparations therefore; mixed condiments and
mixed seasonings; mustard flour and meal and prepared
mustard:
* * *
Other:
* * *
Other:
Mixed condiments and mixed seasonings:
Mixed condiments and mixed seasonings described in additional U.S. note 3 to this chapter
* * *
2103.90.74 Described in additional U.S. note
4 to this chapter and entered pursuant to its provisions
Other
2103.90.80 Other
The subject BBQ Shake seasoning was originally classified under subheading 2103.90.8000, HTSUS, as “mixed condiments and mixed seasonings . . . other . . . other . . . other.” Subheading 2103.90.7400 is the in-quota provision and 2103.90.7800 is the over-quota provisions for mixed condiments and mixed seasonings described in additional U.S. note 3 to chapter 21. This means that if the goods meet the description provided for in note 3, the goods will be classified in 2103.90.7400 or 2103.90.7800, depending on whether the quota provided for in additional note 4 has been filled. Additional U.S. note 3 describes “mixed condiments and mixed seasonings” as
. . . 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, prepared for marketing to the ultimate consumer in the identical form and package in which imported . . .
The BBQ Shake seasoning meets the description provided for in additional U.S. note 3. It is a mixed condiment or seasoning containing over 10 percent by dry weight of cane or beet sugar, and although prepared for marketing to the ultimate consumer (i.e. retail packed), the seasoning is in powder or granular state. The “retail packing” exception provided for in the note is directed to products not in dry amorphous form.
Goods are to be classified under the heading that most specifically describes them. Subheadings 2103.90.7400 and 2103.90.7800 more specifically describe the BBQ Shake seasoning than 2103.90.8000, which provides for “other” mixed condiments and seasonings. Accordingly, the applicable subheading for this product is 2103.90.7400 and 2103.90.7800, the in- and over-quota provisions for mixed condiments and mixed seasonings described in additional U.S. note 3 to chapter 21.
HOLDING
Pursuant to GRI 1, the BBQ Shake seasoning is classified in subheading 2103.90.7400 and 2103.90.7800, HTSUS, which provide for the in- and over-quota provisions for mixed condiments and mixed seasonings described in additional U.S. note 3 to chapter 21. The general column one duty rate is 7.5 percent 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 for on the World Wide Web at http://www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS
NY M83880, dated June 23, 2006, is hereby MODIFIED.
In accordance with 19 U.S.C. §1695(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles Harmon, Director
Commercial Rulings Division