OT:RR:CTF:FTM H304024 PJG

Claude Schellenberger
Max Felchlin AG
Main Street 63
CH-6431 Schwyz/Switzerland

RE: Modification of NY F89129, NY A80432, NY D87491 and NY F87143; tariff classification of toppings

Dear Mr. Schellenberger:

On July 19, 2000, U.S. Customs and Border Protection ("CBP") issued to you New York Ruling Letter ("NY") F89129. The ruling pertains to the tariff classification under the Harmonized Tariff Schedule of the United States ("HTSUS") of four toppings, specifically, TO18E Forest Berries Topping, TO19E Guava Topping, TO14E Mango Topping, and TO17E Tropical Topping. We have since reviewed NY F89129 and determined it to be in error with respect to the classification of the TO17E Tropical Topping. For the reasons set forth below, we hereby modify NY F89129. It is now CBP's position that TO17E Tropical Topping is classified in heading 2008, HTSUS.

Similarly, we have reviewed NY A80432, dated March 4, 1996, NY D87491, dated February 16, 1999, and NY F87143, dated June 15, 2000, and determined them to be in error with respect to the classification of the Blueberry Compound, Cocco and Frutti di Bosco flavorings, and the TO10E Strawberry Topping, respectively. All of these products were classified in heading 2106, HTSUS. For the reasons set forth below, NY A80432, NY D87491, and NY F87143 are modified with respect to the tariff classification of the products identified here. It is now CBP's position that the Blueberry Compound, Cocco and Frutti di Bosco flavorings, and the TO10E Strawberry Topping are classified in heading 2008, HTSUS. 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. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on December 26, 2019, in Volume 53, Number 47, of the Customs Bulletin. No comments were received in response to this notice.

FACTS:

In NY F89129 the toppings were described as follows:

TO18E Forest Berries Topping, TO19E Guava Topping, TO14E Mango Topping, and TO17E Tropical Topping, are viscous, fluid products, ready to use as toppings for plated desserts, ice cream, milk shakes, etc. The TO18E Forest Berries Topping consists of 40 percent sugar, 14 percent raspberry pulp, 13 percent cherry pulp, 11.7 percent glucose syrup, 9 percent sorbitol, 8 percent blueberry pulp, and 5 percent elder juice. TO19E Guava Topping consists of 40 percent guava pulp, 37 percent sugar, 16 percent glucose syrup, and 5 percent sorbitol. TO14E Mango Topping consists of 45 percent sugar, 35 percent mango pulp, 11.30 percent glucose syrup, 5 percent sorbitol, 2.40 and water. TO17E Tropical Topping consisting of 37 percent sugar, 20 percent glucose syrup, 12 percent mango pulp, 12 percent passion fruit, and 8 percent lemon juice. The toppings also contain thickening agents, preservatives, colors, and natural fruit flavor. The toppings will be sold to food service industry professionals in 1-kg bottles, 6 bottles to a carton.

In NY F89129, CBP classified TO18E Forest Berries Topping, TO19E Guava Topping, and TO14E Mango Topping in heading 2008, HTSUS, which provides for "Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included." Conversely, in NY F89129, CBP classified the TO17E Tropical Topping in heading 2106, HTSUS, which provides for "Food preparations not elsewhere specified or included." It is now CBP's position that the TO17E Tropical Topping is classified under heading 2008, HTSUS.

ISSUE:

Whether TO17E Tropical Topping is classifiable in heading 2008, HTSUS, which provides for "Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included," or in heading 2106, HTSUS, which provides for "Food preparations not elsewhere specified or included."

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States ("HTSUS") is determined in accordance with the General Rules of Interpretation ("GRI"). GRI 1 provides that the classification of goods 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 GRIs may then be applied.

The 2019 HTSUS provisions under consideration are as follows:

2008 Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included:

2106 Food preparations not elsewhere specified or included:

The Harmonized Commodity Description and Coding System Explanatory Notes ("ENs") constitute the "official interpretation of the Harmonized System" at the international level. See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). 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 these headings. See id.

General EN to Chapter 20 states, in relevant part, as follows:

This Chapter includes:

* * *

(6) Vegetables, fruit, nuts and other edible parts of plants prepared or preserved by other processes not provided for in Chapter 7, 8 or 11 or elsewhere in the Nomenclature.

* * * EN to 20.08 states, in relevant part, as follows:

This heading covers fruit, nuts and other edible parts of plants, whether whole, in pieces or crushed, including mixtures thereof, prepared or preserved otherwise than by any of the processes specified in other Chapters or in the preceding headings of this Chapter.

It includes, inter alia:

* * * (3) Fruit (including fruit-peel and seeds) preserved in water, in syrup, in chemicals or in alcohol.

(4) Fruit pulp, sterilised, whether or not cooked. * * *

The products of this heading may be sweetened with synthetic sweetening agents (e.g., sorbitol) instead of sugar. Other substances (e.g., starch) may be added to the products of this heading, provided that they do not alter the essential character of fruit, nuts or other edible parts of plants. The products of this heading are generally put up in cans, jars or airtight containers, or in casks, barrels or similar containers.

* * *

EN to 21.06 states, in relevant part, as follows:

Provided that they are not covered by any other heading of the Nomenclature, this heading covers : (A) Preparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk, etc.), for human consumption. (B) Preparations consisting wholly or partly of foodstuffs, used in the making of beverages or food preparations for human consumption. The heading includes preparations consisting of mixtures of chemicals (organic acids, calcium salts, etc.) with foodstuffs (flour, sugar, milk powder, etc.), for incorporation in food preparations either as ingredients or to improve some of their characteristics (appearance, keeping qualities, etc.) (see the General Explanatory Note to Chapter 38). However, the heading does not cover enzymatic preparations containing foodstuffs (e.g., meat tenderisers consisting of a proteolytic enzyme with added dextrose or other foodstuffs). Such preparations fall in heading 35.07 provided that they are not covered by a more specific heading in the Nomenclature.

The heading includes, inter alia :

* * * (4) Pastes based on sugar, containing added fat in a relatively large proportion and, sometimes, milk or nuts, not suitable for transformation directly into sugar confectionery but used as fillings, etc., for chocolates, fancy biscuits, pies, cakes, etc.

* * *

As heading 2106, HTSUS, provides for "[f]ood preparations not elsewhere specified or included," the initial determination is whether the subject toppings are classifiable in another heading in the HTSUS. Consistent with the above-referenced ENs to 20.08, this heading covers fruit, whether whole, in pieces or crushed, including mixtures thereof, prepared or preserved in water, in syrup, in chemicals or in alcohol.

Similar to the other toppings classified in NY F89129 under heading 2008, HTSUS, TO17E Tropical Topping contains fruit pulp, sugar, and glucose syrup. Additionally, TO17E Tropical Topping contains passion fruit and lemon juice. In accordance with General EN to Chapter 20 and EN to 20.08, fruit that is prepared otherwise than by any of the processes specified in other Chapters or in the preceding headings of Chapter 20, are classifiable in heading 20.08. In this case, TO17E Tropical Topping is preserved in syrup. Moreover, neither the passion fruit nor the lemon juice preclude the classification of the TO17E Tropical Topping from heading 2008, HTSUS. There is no language in the legal notes, heading, or the ENs that precludes lemon juice as an ingredient of a product of heading 2008, HTSUS. Also, heading 2008, HTSUS, and EN 20.08 specifically allow for prepared fruit, so the passion fruit combined with the other ingredients does not preclude TO17E Tropical Topping from being classified in heading 2008, HTSUS. NY F89129 does not provide sufficient details concerning the processing of the ingredients into the toppings to preclude their classification in heading 2008, HTSUS.[1]

NY F89129 also does not provide sufficient details concerning whether TO17E Tropical Topping will be imported in airtight containers. Accordingly, if packed in airtight containers, the applicable subheading for TO17E Tropical Topping is 2008.97.10, HTSUS, which provides for "Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Mixtures: In airtight containers and not containing apricots, citrus fruits, peaches or pears." If imported not in airtight containers, then the applicable subheading for TO17E Tropical Topping is 2008.97.90, HTSUS, which provides for "Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Mixtures: Other."

In NY A80432, CBP classified a product called the Blueberry Compound and described as "viscous syrups and pastes, packed in 2.2-pound plastic jars or 10-pound plastic pails, used to flavor baked products, creams, fonds, and ice creams" in heading 2106, HTSUS. The Blueberry compound was described to "consist[] of 68 percent 'blueberry fruit preparation' (65 percent fructose, 30 percent blueberries, and 5 percent pectin, sodium benzoate, water and sugar), 28 percent glucose, 2 percent water, and one percent each of citric acid and artificial flavor." Consistent with the analysis provided in this ruling, it is now CBP's position that the Blueberry Compound is properly classified in heading 2008, HTSUS, and specifically in subheading 2008.99.18, HTSUS, which provides for "Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Other: Berries: Blueberries."

In NY D87491, CBP classified four products, one of which was called Cocco flavoring and another was called Frutti di Bosco flavoring. Both of these products were described as "ice cream flavorings, in fluid form, imported in 6-kilogram tins, for use in the manufacture of ice cream." The Cocco flavoring was said to contain 33 percent sugar, 30 percent coconut, 17.6 percent water, 16 percent glucose syrup, and 3.4 percent flavor. The Frutti di Bosco flavoring was stated to contain 42 percent sugar, 28 percent glucose syrup, 24 percent wildberries, 3.4 percent flavor, one percent each of citric and tartaric acid, and less than one percent pectin. CBP classified these products in heading 2106, HTSUS. Consistent with the analysis provided in this ruling, it is now CBP's position that the Cocco and Frutti di Bosco flavorings are properly classified in heading 2008, HTSUS, and specifically, in subheading 2008.99.91, HTSUS, which provides for "Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Other: Other: Other."

In NY F87143, CBP classified three products, one of which was called the TO10E Strawberry Toppings and were described as "colored, viscous, fluid products, ready to use as toppings for plated desserts, ice cream, milk shakes, etc." The TO10E Strawberry Toppings were stated to contain "47 percent sugar, 27.7 percent water, 23 percent strawberry pulp, and 1.4 percent thickener" and "less than one percent each of acidulant, preservatives, colors and natural fruit flavor." The ruling further stated that "[t]he toppings will be sold to food service industry professionals in 1-kg bottles, 6 bottles to a carton." CBP classified this product in heading 2106, HTSUS. Consistent with the analysis provided in this ruling, it is now CBP's position that the TO10E Strawberry Toppings are properly classified in heading 2008, HTSUS, and specifically, in subheading 2008.80.00, HTSUS, which provides for "Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Strawberries."

HOLDING:

Under the authority of GRIs 1 and 6, TO17E Tropical Topping, if imported in airtight containers, is classified in subheading 2008.97.10, HTSUS, which provides for "Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Mixtures: In airtight containers and not containing apricots, citrus fruits, peaches or pears." The 2019 column one, general rate of duty is 5.6 percent ad valorem.

If imported not in airtight containers, then the applicable subheading for TO17E Tropical Topping is 2008.97.90, HTSUS, which provides for "Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Mixtures: Other." The 2019 column one, general rate of duty is 14.9 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 on the internet at www.usitc.gov/tata/hts/.

EFFECT ON OTHER RULINGS:

NY F89129, dated July 19, 2000, is MODIFIED.

NY A80432, dated March 4, 1996, is MODIFIED only with respect to the classification of the Blueberry Compound.

NY D87491, dated February 16, 1999, is MODFIED only with respect to the classification of the Cocco and Frutti di Bosco flavorings.

NY F87143, dated June 15, 2000, is MODIFIED only with respect to the classification of the TO10E Strawberry Topping.

In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

Craig T. Clark, Director
Commercial and Trade Facilitation Division

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[1] Pursuant to correspondence from the National Commodity Specialist Division, the file for NY F89129 was destroyed in the World Trade Center tragedy on September 11, 2001.