CLA-2:CO:R:C:G 085387 SR
Mr. John S. Anderson
Sonnenberg, Anderson, O'Donnell & Rodriguez
200 West Adams Street
Suite 2625
Chicago, IL 60606
RE: Reconsideration of NYRL 839590
Dear Mr. Anderson:
This is in reference to your letter dated August 7, 1989,
requesting reconsideration of New York Ruling Letter (NYRL)
839390, dated April 27, 1989, concerning powdered tropical drink
mixes from Columbia.
FACTS:
The merchandise at issue consists of powdered tropical drink
mixes called El Rodeo. They were classified in NYRL 839390,
dated April 27, 1989, under subheading 1901.90.3040, HTSUSA, as
food preparations of goods of headings 0401 to 0404, not
elsewhere specified or included, articles of milk or cream not
specially provided for, other. The importer claims that they
should be classified under subheading 2106.90.5050, HTSUSA, as
other food preparations not elsewhere specified or included.
The following facts are provided by the importer:
The tropical drink mixes will be available in five flavors-
blackberry, banana-orange, passion fruit, caruba fruit, and
guanabana fruit. The ingredients for each flavor by weight are
-2-
as follows:
1. Banana-Orange
Sugar 48%
Powdered Milk 48%
Other Ingredients 4%
2. Passion Fruit
Sugar 46%
Powdered Milk 50%
Other Ingredients 4%
3. Caruba Fruit
Sugar 56%
Powdered Milk 41%
Other Ingredients 3%
4. Guanabana Fruit
Sugar 45%
Powdered Milk 51%
Other Ingredients 4%
5. Blackberry Fruit
Sugar 59%
Powdered Milk 38%
Other Ingredients 3%
The "Other Ingredients" contained in each of the tropical
drink mix flavors are: Vitamin A, Vitamin C,
Carboxymethylcellulose, Citric Acid, Calcium Carbonate,
Phosphorous, Vitamin D, Artificial Colors, Artificial Flavors.
The drinks are imported and sold in foil pouches. They are
prepared by adding water and blending. Each pouch produces four
glasses of fruit drink.
ISSUE:
What is the classification of the merchandise at issue?
-3-
LAW AND ANALYSIS:
The importer claims that the drink should be classified as
other food preparations. This classification was reached by an
essential character analysis of the ingredients. The NY
classification of subheading 1901.90.3040, HTSUSA, was determined
by GRI 1. Classification of goods under the HTSUSA is governed
by the General Rules of Interpretation (GRI), taken in order.
GRI 1 provides that "classification shall be determined according
to the terms of the headings and any relative section or chapter
notes, and provided such headings or notes do not otherwise
require, according to [the remaining GRI'S taken in order]."
Subheading 1901.90.30, HTSUSA, provides for food
preparations of goods of headings 0401 to 0404, not containing
cocoa power or containing cocoa powder in a proportion by weight
of less than 10 percent, not elsewhere specified or included,
other, articles of milk not specially provided for, other.
Subheading 0402.10.00, HTSUSA, provides for milk, concentrated or
containing added sugar or other sweetening matter, in powder, of
a fat content, by weight, exceeding 1.5 percent. The sweetened
milk ingredient in the powdered drink mix does qualify for this
provision.
The importer claims that the merchandise at issue cannot be
classified under Subheading 1901.90.3040, HTSUSA, because of an
exception in the Explanatory Notes to heading 0402, HTSUSA. The
Explanatory Notes constitute the official interpretation of the
tariff at the international level. The Explanatory Notes state
that heading 0402, HTSUSA, does not cover beverages consisting of
milk flavored with cocoa or other substances. This does not
affect the milk at issue. Heading 1901, HTSUSA, provides for
food preparations of goods of 0401 to 0404. The powered drink
mix is composed of sweetened milk of heading 0402, HTSUSA;
however, because of the addition of the flavorings and other
ingredients it is not classified under the milk provision. The
Explanatory Notes to heading 1901, HTSUSA, state the following:
The preparations of this heading may be distinguished from
the products of headings 04.01 to 04.04 in that they
contain, in addition to natural milk constituents, other
ingredients not permitted in the products of those earlier
headings. Thus heading 19.01 included, for example:
-4-
(1) Preparations in powder or liquid form used as infant
food or for dietetic purposes and consisting of milk to
which secondary ingredients have been added.
Under GRI 1 the merchandise at issue must be classified under
subheading 1901.90.3040, HTSUSA.
HOLDING:
The powdered drink mix at issue is classifiable under
subheading 1901.90.3040, HTSUSA, which provides for food
preparations of goods of headings 0401 to 0404, other articles of
milk not specially provided for, other. The rate of duty is 17.5
percent ad valorem. This product will also be subject to the
quota restrictions of subheading 9904.10.60, HTSUSA. NYRL
839590, dated April 27, 1989, is hereby affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division
6 cc A.D. New York Seaport
1 cc Durant
1 cc legal reference