OT:RR:CTF:FTM H317519 TJS

Ms. Tara Trussell
Redpath Sugar Ltd.
95 Queen's Quay East
Toronto, ON M5E 1A3 Canada

RE: Modification of HQ H313454; Drink mixes; Tariff Classification; USMCA

Dear Ms. Trussell:

This is in reference to your correspondence, dated March 19, 2021, requesting reconsideration of Headquarters Ruling Letter ("HQ") H313454, dated February 4, 2020, concerning U.S. Customs and Border Protection's ("CBP") tariff classification of certain drink mixes under the Harmonized Tariff Schedule of the United States ("HTSUS"), and the country of origin marking and eligibility of these drink mixes for preferential tariff treatment under the United States-Mexico-Canada Agreement ("USMCA"). Upon review, we have determined HQ H313454 to be in error with respect to the classification of the drink mixes produced under a certain scenario and with respect to the classification analysis pertaining to the remaining drink mixes. Additionally, we are amending HQ H313454 with respect to the eligibility of certain drink mixes for preferential tariff treatment under the USMCA. The country of origin for marking purposes for all of the drink mixes remains Brazil. Therefore, for the reasons set forth below, we hereby modify HQ H313454.

FACTS:

HQ H313454 described the products at issue as follows:

The products at issue consist of the following five dry powdered drink mixes: lemonade, orange, fruit punch, grape, and lemon tea. The drink mixes are composed of several ingredients from various countries that are blended together in Canada. Below is a list of the ingredients for each drink mix and the country from which those ingredients are sourced and their classification under the HTSUS:

Lemonade:

|Ingredient |Country of Origin |HS Code | |Sugar |Brazil |1701.99.10 | |Citric Acid |Canada |2918.14.00 | |Sodium Citrate |Canada |2918.15.20 | |Beatreme |Mexico |3302.10.90 | |Lemon Flavor |United States |3302.10.10 | |Silicon Dioxide |United States |2811.22.00 | |Ascorbic Acid |China |2936.27.00 | |FD&C Yellow #5 colour |United States |3203.00.20 |

Orange:

|Ingredient |Country of Origin |HS Code | |Sugar |Brazil |1701.99.10 | |Citric Acid |Canada |2918.14.00 | |Sodium Citrate |Canada |2918.15.20 | |Beatreme |Mexico |3302.10.90 | |Lemon Flavor |United States |3302.10.10 | |Silicon Dioxide |United Sates |2811.22.00 | |Ascorbic Acid |China |2936.27.00 | |FD&C Yellow #5 |United States |3203.00.20 | |FD&C Yellow #6 |United States |3203.00.20 | |FD&C Yellow #6 lake |United States |3203.00.20 |

Fruit Punch:

|Ingredient |Country of Origin |HS Code | |Sugar |Brazil |1701.99.10 | |Citric Acid |Canada |2918.14.00 | |Sodium Citrate |Canada |2918.15.20 | |Beatreme |Mexico |3302.10.90 | |Punch Flavor |United States |3302.10.10 | |Silicon Dioxide |United States |2811.22.00 | |Ascorbic Acid |China |2936.27.00 | |FD&C Red #40 colour |United States |3203.00.20 | |FD&C Red #40 lake |United States |3203.00.20 |

Grape:

|Ingredient |Country of Origin |HS Code | |Sugar |Brazil |1701.99.10 | |Citric Acid |Canada |2918.14.00 | |Sodium Citrate |Canada |2918.15.20 | |Grape Dried Crystals |United States |0806.20.90 | |Grape Flavor |United States |3302.10.10 | |Silicon Dioxide |United States |2811.22.00 | |Ascorbic Acid |China |2936.27.00 | |FD&C Red #40 colour |United States |3203.00.20 | |FD&C Blue #1 colour |United States |3203.00.20 |

Lemon Tea:

|Ingredient |Country of Origin |HS Code | |Sugar |Brazil |1701.99.10 | |Caramel Colour |United States |3204.19.90 | |Citric Acid |United States |2918.14.00 | |Sodium Citrate |Israel |2918.15.20 | |Lemon Flavor |United States |3302.10.10 | |Tea Flavor |United States |3302.10.10 | |Silicon Dioxide |United States |2811.22.00 | |Ascorbic Acid |China |2936.27.00 | |Tricalcium Phosphate |Israel |2835.26.90 |

The drink mixes are produced in 2,200 lb. batches in a ribbon blender. Each drink mix is composed of raw cane sugar imported into Canada from Brazil where it is further refined. One by one the sugar and other ingredients are added to the blender where they are mixed together for ten minutes until the blend is made into the drink mix. The final product for each drink mix contains more than 65 percent by dry weight of sugar. The drink mix is then tested for color, brix, and taste. Once approved by the laboratory, the drink mix is prepared and shipped to the United States. The following are three shipment scenarios for the drink mixes:

Scenario 1

Blended in Canada and packaged in 2,200 lb supersacks. These supersacks will be shipped to a co-manufacturer in the United States where they will discharge the supersack into their hopper. The product will be filled in fibre canisters or 2 lb pillow pouches, packaged 6 per case, palletized and shipped for sale in the United States to the retail market.

Scenario 2

Blended and packaged in Canada. The blended product will be discharged into a hopper where it is gravity fed to the filler. The product will be filled in fibre canisters or 2 lb pillow pouches, packaged 6 per case, palletized and shipped for sale in the United States to the retail market.

Scenario 3

Blended and packaged in Canada. The blended product will be discharged into a hopper where it is gravity fed to the filler. The product will be filled in fibre canisters or 2 lb pillow pouches, packaged 6 per case, palletized and shipped for sale in the United States to the foodservice industry (camps, amusement parks & restaurants).

To consume the drink mix beverage, the contents of the mix are emptied in a container, and cold water is added according to the instructions on the drink mix.

HQ H313454 classified the drink mixes in scenarios one and three under subheading 2106.90.94, HTSUS, which provides for "[f]ood preparations not elsewhere specified or included: Other [...]: Articles containing over 65 percent by dry weight of sugar described in additional U.S. note 2 to chapter 17: Other." The ruling classified the drink mixes in scenario two under subheading 2106.90.95, HTSUS, which provides for "[f]ood preparations not elsewhere specified or included: 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" and, if the quantitative limits described in Additional U.S. Note 8 to Chapter 17, HTSUS, have been reached, under subheading 2106.90.97, HTSUS, which provides for "[f]ood preparations not elsewhere specified or included: Other [...]: Articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17: Other." In classifying the products, HQ H313454 determined that "[a]ll of the drink mixes meet the first two requirements of [Additional U.S. Note 2 to Chapter 17] - that they must contain over 65 percent of dry weight of cane sugar and are capable of being further processed with other ingredients i.e. water."

HQ H313454 further determined that the country of origin of the drink mixes was Brazil. With respect to the USMCA, the ruling determined that the drink mixes classified under subheading 2106.90.95, HTSUS, were eligible for preferential tariff treatment under the USMCA, whereas the drink mixes classified in subheadings 2106.90.94 and 2106.90.97, HTSUS, did not qualify for preferential tariff treatment under the USMCA since the country of origin of the drink mixes for marking purposes was Brazil. In your request for reconsideration, you dispute the classification of the drink mixes under scenario one and the determination that the drink mixes classified in subheadings 2106.90.94 and 2106.90.97, HTSUS, did not qualify for preferential tariff treatment under the USMCA.

ISSUES:

1) What is the tariff classification under the HTSUS of the powdered drink mixes produced under scenario one?

2) Whether the drink mixes classified under subheadings 2106.90.94 and 2106.90.97, HTSUS, imported into the United States from Canada are eligible for preferential tariff treatment under the USMCA.

LAW AND ANALYSIS:

1) Tariff Classification

Classification under the HTSUS is made 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 GRI 2 through 6 may then be applied in order. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.

The 2021 HTSUS provisions under consideration are as follows:

2106: Food preparations not elsewhere specified or included:

2106.90: Other:

Other:

Other:

Other:

Other:

Articles containing over 65 percent by dry weight of sugar described in additional U.S. note 2 to Chapter 17:

2106.90.9400: 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. . .

* * * * *

Additional U.S. Note 2 to Section IV, HTSUS, provides as follows:

2. For the purposes of this section, unless the context otherwise requires-

a) the term "percent by dry weight" means the sugar content as a percentage of the total solids in the product;

b) the term "capable of being further processed or mixed with similar or other ingredients" means that the imported product is in such condition or container as to be subject to any additional preparation, treatment or manufacture or to be blended or combined with any additional ingredient, including water or any other liquid, other than processing or mixing with other ingredients performed by the ultimate consumer prior to consumption of the product;

c) the term "prepared for marketing to the ultimate consumer in the identical form and package in which imported" means that the product is imported in packaging of such sizes and labeling as to be readily identifiable as being intended for retail sale to the ultimate consumer without any alteration in the form of the product or its packaging; and

d) the term "ultimate consumer" does not include institutions such as hospitals, prisons and military establishments or food service establishments such as restaurants, hotels, bars or bakeries.

* * * * *

Additional U.S. Note 2 to Chapter 17, HTSUS, provides as follows:

For the purposes of this schedule, the term "articles containing over 65 percent by dry weight of sugar described in additional U.S. note 2 to chapter 17" means 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.

* * * * *

Additional U.S. Note 3 to Chapter 17, HTSUS, provides as follows:

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.

* * * * *

Additional U.S. Note 8 to Chapter 17 provides as follows:

The aggregate quantity of articles containing over 10 percent by dry weight of sugars described in additional U.S. note 3 to chapter 17, entered under subheadings 1701.91.54, 1704.90.74, 1806.20.75, 1806.20.95, 1806.90.55, 1901.10.74, 1901.90.69, 2101.12.54, 2101.20.54, 2106.90.78 and 2106.90.95 during the 12-month period from October 1 in any year to the following September 30, inclusive, shall not exceed 64,709 metric tons (articles the product of Mexico shall not be permitted or included under this quantitative limitation and no such articles shall be classifiable therein).

* * * * *

There is no dispute that the subject drink mixes are classified under subheading 2106.90, HTSUS, which provides for "[f]ood preparations not elsewhere specified or included: Other." The present issue lies at the 8-digit classification level, and in particular, the proper application of U.S. Additional Note 2 to Chapter 17, HTSUS ("Chapter 17 Note 2"). You argue that CBP incorrectly applied Chapter 17 Note 2 to the drink mixes by determining that all the drink mixes meet the Note's second requirement, which requires the product to be "capable of being further processed or mixed with similar or other ingredients." You argue that CBP's application of Chapter 17 Note 2 ultimately resulted in the misclassification of the drink mixes in scenario one, which you claim are properly classified under subheadings 2106.90.95 or 2106.90.97, HTSUS, as appropriate.

Classification under subheading 2106.90.94, HTSUS, requires a product to be described by Chapter 17 Note 2. Chapter 17 Note 2 covers goods that (1) contain over 65% cane or beet sugar, (2) are capable of being further processed or mixed with other ingredients, and (3) are not prepared for marketing to the ultimate consumer in the identical form and package in which imported. All the subject drink mixes meet the first requirement because they contain over 65% cane sugar. Regarding the second requirement, Additional U.S. Note 2(b) to Section IV, HTSUS ("Section IV Note 2"), defines "capable of being further processed or mixed with similar or other ingredients" as meaning "the imported product is in such condition or container as to be subject to any additional preparation, treatment or manufacture or to be blended or combined with any additional ingredient, including water or any other liquid, other than processing or mixing with other ingredients performed by the ultimate consumer prior to consumption of the product." (emphasis added). Thus, this note provides an exception when it is the ultimate consumer who processes or mixes the imported product with other ingredients prior to consumption. See, e.g., HQ 963833 (dated May 1, 2001) (classifying cake icings imported in bulk). Here, the drink mixes are not considered "capable of being further processed or mixed with similar or other ingredients" under this note when the retail purchaser, as the ultimate consumer, mixes the drink powders with water to create a consumable drink. Because the drink mixes of scenario one are sold directly to retail purchasers who are instructed to mix the drink powders with water, these drink mixes are not "capable of being further processed or mixed with similar or other ingredients" as defined by Section IV Note 2(b). Thus, Chapter 17 Note 2 does not describe the drink mixes of scenario one, disqualifying them from classification under subheading 2106.90.94, HTSUS. The drink mixes of scenario one contain over 10% by dry weight of sugar and are described by Additional U.S. Note 3 to Chapter 17, HTSUS. Therefore, the drink mixes of scenario one are classified under subheadings 2106.90.95 or 2106.90.97, HTSUS, as appropriate.

Although applying Section IV Note 2(b) to the products of scenario two and three does not impact their classification as determined by HQ H313454, we apply the note for consistency and accuracy as follows. Like scenario one, the imported goods of scenario two are sold to retail customers in the United States who, as the ultimate consumers, perform the mixing with water prior to consumption. Accordingly, the drink mixes of scenario two are not "capable of being further processed or mixed with similar or other ingredients" per Section IV Note 2(b). Regardless, HQ H313454 classified these products in subheadings 2106.90.95 and 2106.90.97, HTSUS, because the drink mixes did not meet the third requirement of Chapter 17 Note 2, that is, the products are prepared for marketing to the ultimate consumer in the identical form and package in which imported. The imported goods of scenario three are not "capable of being further processed or mixed with similar or other ingredients" because under this scenario, the drink mixes are packaged for retail sale to the food industry and, per Section IV Note 2(d), institutions and food service establishments are not considered ultimate consumers. Thus, the drink mixes in scenario three remain classified in subheading 2106.90.94, HTSUS.

In view of the foregoing, we find that the drink mixes under scenarios one and two are classified under subheading 2106.90.95, HTSUS, which provides for "[f]ood preparations not elsewhere specified or included: 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: Described in additional U.S. note 8 to chapter 17 and entered pursuant to its provisions." If the quantitative limits of Additional U.S. Note 8 to Chapter 17, HTSUS, have been reached, the drink mixes of scenario one are classified under subheading 2106.90.97, HTSUS, which provides for "[f]ood preparations not elsewhere specified or included: 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: Other." The drink mixes in scenario three remain classified in subheading 2106.90.94, HTSUS, which provides for "[f]ood preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Articles containing over 65 percent by dry weight of sugar described in additional U.S. note 2 to chapter 17: Other."

2) USMCA

The USMCA was signed by the Governments of the United States, Mexico, and Canada on November 30, 2018. The USMCA was approved by the U.S. Congress with the enactment on January 29, 2020, of the USMCA Implementation Act, Pub. L. 116-113, 134 Stat. 11, 14 (19 U.S.C. 4511(a)). General Note ("GN") 11 of the HTSUS implements the USMCA. GN 11(a) provides:

i) Goods that originate in the territory of Mexico, Canada or the United States (hereinafter referred to as "USMCA country" or "USMCA countries" as further defined in subdivision (l)(xxiv) of this note) under the terms of subdivision (b) of this note and regulations issued by the Secretary of the Treasury (including Uniform Regulations provided for in the USMCA), and goods enumerated in subdivision (p) of this note, when such goods are imported into the customs territory of the United States and are entered under a subheading for which a rate of duty appears in the "Special" subcolumn, followed by the symbol "S" in parentheses, are eligible for such duty rate, in accordance with section 202 of the United States-Mexico-Canada Agreement Implementation Act; and

ii) Goods that originate in the territory of a USMCA country under the terms of subdivision (b) of this note and regulations issued by the Secretary of the Treasury, when such goods are imported into the customs territory of the United States and are entered under a subheading for which a rate of duty appears in the "Special" subcolumn, followed by the symbol "S+" in parentheses, or under a subheading whose article description provides for originating goods of one or more USMCA countries, as the case may be, are eligible for such duty rate, in accordance with section 202 of the United States-Mexico-Canada Agreement Implementation Act.

GN 11(b) sets forth the criteria for determining whether a good is an originating good for purposes of the USMCA. GN 11(b) states:

For the purposes of this note, a good imported into the customs territory of the United States from the territory of a USMCA country, as defined in subdivision (l) of this note, is eligible for the preferential tariff treatment provided for in the applicable subheading and quantitative limitations set forth in the tariff schedule as a "good originating in the territory of a USMCA country" only if --

i) the good is a good wholly obtained or produced entirely in the territory of one or more USMCA countries;

ii) the good is a good produced entirely in the territory of one or more USMCA countries, exclusively from originating materials;

iii) the good is a good produced entirely in the territory of one or more USMCA countries using nonoriginating materials, if the good satisfies all applicable requirements set forth in this note (including the provisions of subdivision (o)); or ...

Since the drink mixes contain non-originating ingredients, they are not considered goods wholly obtained or produced entirely in a USMCA country under GN 11(b)(i). The drink mixes are also not produced exclusively from originating materials under GN 11(b)(ii). Thus, we must next determine whether the drink mixes qualify under GN 11(b)(iii). As previously noted, the drink mixes in scenarios one and two are classified under subheading 2106.90.95 or 2106.90.97, HTSUS, depending on whether the quantitative limits of Additional U.S. Note 8 to Chapter 17, HTSUS, have been reached. Additionally, the drink mixes in scenario three are classified in subheading 2106.90.94, HTSUS. The applicable rule of origin for goods classified under subheadings 2106.90.94, 2106.90.95, and 2106.90.97, HTSUS, is in GN 11(o)/21.15, HTSUS, which provides "[a] change to heading 2106 from any other chapter." Since the non-originating ingredients in the drink mixes are all classified in a chapter other than Chapter 21, HTSUS, the tariff shift rule is met. Accordingly, the drink mixes classified under subheadings 2106.90.94, 2106.90.95, and 2106.90.97, HTSUS, satisfy the tariff shift rule under GN 11(o).

However, we note that the special column for subheadings 2106.90.94 and 2106.90.97, HTSUS, references subheadings 9823.10.01-9823.10.45, HTSUS, for "S+." U.S. Note 10 to Subchapter XXIII, HTSUS, which concerns sugar containing products pursuant to the USMCA, provides that:

This note and subheadings 9823.10.01 through 9823.10.45 are effective as to originating goods of the USMCA countries eligible for special tariff treatment under the terms of general note 11 to the tariff schedule provided for in subheadings [...] 2106.90.94 or 2106.90.97, except as provided in subparagraph (b)(3). From July 1, 2020, through December 31, 2020, in 2021 and in successive years thereafter, the rates of duty provided for in subheadings 9823.10.01 through 9823.10.45 in the "Special" subcolumn of rates of duty column 1 followed by the symbol "(S+)" shall apply to goods of such countries in lieu of the duty rates set forth in the special subcolumn in the permanent subheadings enumerated above.

U.S. Note 10(b) states that "[g]oods of Canada that qualify to be marked as a good of Canada pursuant to U.S. law, without regard to whether the good is marked shall be eligible for USMCA tariff treatment only under subheadings 9823.10.02 through 9823.10.45." U.S. Note 10(b)(1) provides the quantitative limitations for goods entered under subheading 9823.10.02, HTSUS, which is a duty-free provision under the USMCA. Per U.S. Note 10(b)(2), if the quantitative limitations of paragraph 10(b)(1) are full, then such originating goods of Canada shall be entered under subheadings 9823.10.03 through 9823.10.45, HTSUS.

In HQ H313454, CBP determined that the country of origin of the drink mixes was Brazil for purposes of the marking requirements. U.S. Note 10(b)(4) provides an exception to the marking requirement for goods entered under subheading 9823.10.02, HTSUS. U.S. Note 10(b)(4) was added as a correction to the HTSUS in March of 2021 after HQ H313454 was issued. This language was included in the USMCA implementing proclamation (ITC Pub. 5060) but had been omitted when the proclamation changes were initially entered into the HTSUS. U.S. Note 10(b)(4) provides that:

4) Originating goods that last underwent production in Canada shall be eligible for entry under subheading 9823.10.02 regardless of whether they qualify to be marked as a good of Canada pursuant to U.S. law.

Thus, goods that last underwent production in Canada do not need to be marked as products of Canada to obtain the in-quota rate per U.S. Note 10(b)(1) under subheading 9823.10.02, HTSUS. Here, the drink mixes last underwent production in Canada where the sugar was further refined and the individual components were mixed together to form the finished drink mixes. Accordingly, the drink mixes of subheadings 2106.90.94 and 2106.90.97, HTSUS, are eligible for preferential tariff treatment under the USMCA under subheading 9823.10.02, HTSUS, provided they meet the quantitative limits set forth in U.S. Note 10(b)(1). If the quantitative limitations set forth in U.S. Note 10(b)(1) have been reached, the drink mixes of subheadings 2106.90.94 and 2106.90.97, HTSUS, are to be entered under subheadings 9823.10.44 and 9823.10.45, HTSUS, respectively, only if these drink mixes qualify to be marked as goods of Canada. Since the country of origin for marking purposes of the drink mixes at issue here is Brazil and not Canada, the "S+" rates are not applicable. Therefore, the drink mixes will not be eligible under subheadings 9823.10.02, 9823.10.44, or 9823.10.45, HTSUS, and are subject to the column one general duty rate.

HOLDING:

By application of GRI 1 and 6, the drink mixes in scenarios one and two are classified in subheading 2106.90.95, HTSUS, which provides for "[f]ood preparations not elsewhere specified or included: 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: Described in additional U.S. note 8 to chapter 17 and entered pursuant to its provisions." The column one, general rate of duty is 10% ad valorem. If the quantitative limits described in Additional U.S. Note 8 to Chapter 17, HTSUS, have been reached, the drink mixes are classified under subheading 2106.90.97, HTSUS, which provides for "[f]ood preparations not elsewhere specified or included: 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: Other." The column one, general rate of duty is 28.8/kg + 8.5% ad valorem.

The drink mixes in scenario three are classified in subheading 2106.90.94, HTSUS, which provides for "[f]ood preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Articles containing over 65 percent by dry weight of sugar described in additional U.S. note 2 to chapter 17: Other." The column one, general rate of duty is 28.8/kg + 8.5% ad valorem.

Based on the information provided, the drink mixes classified under subheading 2106.90.95, HTSUS, are eligible for preferential tariff treatment under the USMCA. The duty rate is free. The drink mixes of subheadings 2106.90.94 and 2106.90.97, HTSUS, are eligible for preferential tariff treatment under the USMCA under subheading 9823.10.02, HTSUS, provided they meet the quantitative limits set forth in U.S. Note 10(b)(1). The duty rate is free. However, if the drink mixes, classified in subheadings 2106.90.94 and 2106.90.97, HTSUS, are not eligible for the USMCA under subheading 9823.10.02, HTSUS, the drink mixes will not be eligible under subheadings 9823.10.44 or 9823.10.45, HTSUS. The column one, general rate of duty is 28.8/kg + 8.5% ad valorem.

EFFECT ON OTHER RULINGS:

HQ H313454, dated February 4, 2020 is hereby MODIFIED.

This modification decision is not subject to the notice and comment provisions of 19 U.S.C. 1625(c) because HQ H313454 has been in effect for less than 60 days.


Sincerely,

For Craig T. Clark, Director
Commercial and Trade Facilitation Division