CLA-2 OT:RR:CTF:TCM H080597 CkG
TARIFF NO: 1701.91.48; 1701.99.10
Shirley A. Coffield, Esq.
COFFIELD LAW
1050 17th St. NW, Suite 520
Washington, D.C. 20036
RE: Reconsideration of NY N061799; classification of bee food sucrose
Dear Ms. Coffield:
This is in response to your letter of October 1, 2009, requesting the reconsideration of New York Ruling Letter (NY) N061799, issued to you on August 27, 2009. Customs and Border Protection ruled in that decision that two sugar preparations for bees were classified in heading 1701 of the Harmonized Tariff Schedule of the United States (HTSUS), as sucrose.
FACTS:
The products were described in NY N061799 as follows:
The products are described as food for honey bee pollinators, consisting of high grade refined white sugar with additives unique and necessary to the production of food for bees. You state that the food is fed as a substitution for the honey that has been harvested from the bee colonies for sale to the United States food industry and retailer food companies. There are two "Bee Foods" which RDN wishes to import.
Product One: Flavored Bee Food and Product Two: Non-flavored Bee Food.
…
According to Customs Laboratory Report no. NY20090809, dated August 17, 2009, "the sample (Flavored Bee Food), crystalline off-white powder having strong spearmint aroma, is packed in a plastic bottle, marked 1. The sample is flavored and contains 99.9 percent sucrose on dry basis and less than 0.1 percent citric acid. The sample, (Non-flavored Bee Food), white crystalline powder having strong aroma, is packed in a plastic bottle, marked 2. The sample contains 99.9 percent sucrose on dry basis and less than 0.1 percent citric acid."
A supplemental lab report dated December 22, 2009, further indicates that the products contain trace amounts of various vitamins (which, in your communications to the National Commodity Specialist Division in New York, were stated to comprise about 0.050280% of the product, equivalent to 0.227 per metric ton).
ISSUE:
Whether the instant sugar preparations are classified in heading 1701, HTSUS, as a sugar, or in heading 2309, HTSUS, as an animal feed preparation.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). 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 GRIs 2 through 6.
The HTSUS provisions under consideration are as follows:
1701 Cane or beet sugar and chemically pure sucrose, in solid form:
Other:
1701.91 Containing added flavoring or coloring matter:
Containing added flavoring matter whether or not containing added coloring:
Articles containing over 65 percent by dry weight of sugar described in additional U.S. note 2 to chapter 17:
1701.91.48 Other…
1701.99 Other:
Described in additional U.S. note 5 to this chapter and
entered pursuant to its provisions…
1701.99.50 Other…
* * * *
2309 Preparations of a kind used in animal feeding:
2309.90 Other:
Other:
Other:
Other:
2309.90.95: Other…
* * * *
Note 1 to Chapter 23, HTSUS, provides as follows:
Heading 2309 includes products of a kind used in animal feeding, not elsewhere specified or included, obtained by processing vegetable or animal materials to such an extent that they have lost the essential characteristics of the original material, other than vegetable waste, vegetable residues and byproducts of such processing.
* * * *
The Harmonized Commodity Description and Coding System Explanatory
Notes (ENs), constitute the official interpretation of the Harmonized System at the international level. 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 the headings. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 17.01 provides, in pertinent part, as follows:
Cane sugar is derived from the juices of the sugar cane stalk. Beet sugar is derived from the juices obtained by extraction from the root of the sugar beet.
…
Refined cane or beet sugars are produced by the further processing of raw sugar. They are generally produced as a white crystalline substance which is marketed in various degrees of fineness or in the form of small cubes, loaves, slabs, or sticks or regularly moulded, sawn or cut pieces.
…
The heading also includes chemically pure sucrose in solid form, whatever its origin.
* * * *
EN 23.09 provides, in pertinent part, as follows:
This heading covers sweetened forage and prepared animal feeding stuffs consisting of a mixture of several nutrients designed :
(1) to provide the animal with a rational and balanced daily diet (complete feed);
(2) to achieve a suitable daily diet by supplementing the basic
farm produced feed with organic or inorganic substances (supplementary feed); or
(3) for use in making complete or supplementary feeds.
The heading includes products of a kind used in animal feeding, obtained by processing vegetable or animal materials to such an extent that they have lost the essential characteristics of the original material, for example, in the case of products obtained from vegetable materials, those which have been treated to such an extent that the characteristic cellular structure of the original vegetable material is no longer recognisable under a microscope.
* * * *
You contend that the instant sucrose preparations are not classifiable as sucrose of heading 1701, HTSUS, because they are designed for consumption by bees and not humans. Further, you argue that heading 2309, HTSUS, is the more specific provision and infer that heading 1701, HTSUS, is limited to use in food preparations for human consumption. You state that the instant preparations should not be classified in heading 1701, HTSUS, because USDA quotas for sugar are not meant to cover sugar meant for other than human use. First, we would clarify that it is CBP’s function to classify products in their appropriate HTSUS subheading based on the GRIs, that is, by the statutory language within the HTSUS.
Heading 1701, HTSUS, is an eo nomine and not a use provision. As such, nothing in the heading limits classification in this provision to sugar for human consumption, or any other particular use. An eo nomine provision, without limitation or a contrary legislative intent or judicial decision, will include all forms of the named article. See Sabritas, S.A. de C.V. and Frito-Lay, Inc. v. U.S., 998 F. Supp. 1123, 22 Ct. Int’l Trade 59 (1998).
The instant sucrose preparations are over 99.9% sucrose, with flavoring and other additives present in only trace amounts. CBP has held in similar cases that trace amounts of additives in an otherwise pure substance are de minimis and thus do not change the classification of such a good. See e.g., HQ 088756, dated April 8, 1991, in which CBP considered whether the addition of trace amounts of calcium, citric acid and malic acid to orange juice concentrate was significant enough to change the product’s classification from an orange juice of heading 2009, HTSUS, to a food preparation of heading 2106, HTSUS. The ruling held that the calcium fortifier, citric and malic acids were de minimis, and the product remained classifiable as a juice of heading 2009, HTSUS. Likewise, in HQ 963300, dated July 26, 2001, CBP held that the addition of a small amount of Vitamin E to evening primrose oil did not affect the product’s classification as an oil of heading 1515, HTSUS.
CBP has also consistently classified similar blends in heading 1701, HTSUS. For example, see NY G86340, dated January 29, 2001, which classified in heading 1701 a blend of 99% sugar and 1% gelatin; NY G86384, dated February 8, 2001 (95% sugar, 5% gelatin); NY G86512, dated February 12, 2001 (99% sugar, 1% dried apple juice); NY H82796, dated July 12, 2001 (99.5% sugar, .5% cocoa), and NY I86961, dated October 30, 2002 (cinnamon sugar and vanilla sugar blends).
We note that neither the appropriate HTSUS provisions in Chapter 17 nor the quota language included in note 5 to Chapter 17 limits classification within that chapter to sugar for human consumption. Furthermore, we note that Congressional action supports classification in heading 1701, HTSUS, for sugar intended for other than human use. Sucrose classifiable in subheading 1701.90.50, HTSUS, was subject to a temporary duty suspension of subheading 9902.01.23, HTSUS, which allowed duty free entry for “Saccharose to be used other than in food for human consumption and not for nutritional purposes (provided for in subheading 1701.99.50)”, entered on or before December 31, 2006.” While this provision is no longer in effect, it clearly indicates that Congress considered heading 1701, HTSUS, to include sugar intended for purposes other than human consumption.
Finally, the instant products are not classifiable in heading 2309, HTSUS. The EN and Chapter Notes indicate that heading 2309, HTSUS, is not meant to cover products such as the sucrose formulations at issue. Note 1 to Chapter 23 states that heading 2309, HTSUS, includes products which have been processed to such an extent that they have lost the essential characteristics of the original material. There is no indication that the preparations have been processed so as to have lost their essential characteristics as goods of heading 1701, HTSUS. The relative specificity of headings 1701 and 2309, HTSUS, therefore does not affect the classification of the instant sucrose preparations because they are not described by heading 2309. The bee food sucrose preparations are eo nomine provided for at GRI 1 in heading 1701, HTSUS, as chemically pure sucrose, with or without added flavoring.
HOLDING:
The instant sucrose preparations are classified in heading 1701, HTSUS. The flavored bee food is specifically provided for in subheading 1701.91.48, HTSUS, which provides for “Cane or beet sugar and chemically pure sucrose, in solid form: Other: Containing added flavoring or coloring matter: Containing added flavoring matter whether or not containing added coloring: Articles containing over 65 percent by dry weight of sugar described in additional U.S. note 2 to chapter 17: Other.” The 2011 column one, general rate of duty is 33.9¢/kg + 5.1% ad valorem.
The non-flavored bee food is provided for in subheading 1701.99.10, HTSUS, which provides for ““Cane or beet sugar and chemically pure sucrose, in solid form: Other: Described in additional U.S. note 5 to this chapter and entered pursuant to its provisions.” The 2011 column one, general rate of duty is 3.6606 cents per kilogram less 0.020668 cents per kilogram for each degree under 100 degrees (and fractions of a degree in proportion) but not less than 3.143854 cents per kilogram.
If not described in additional U.S. note 5 to chapter 17 and not entered pursuant to its provisions, the applicable subheading for the non-flavored bee food will be 1701.99.50, HTSUS, as sugar “other” than that described in additional U.S. note 5 to chapter 17. The 2011 column one, general rate of duty is 35.74 cents per kilogram.
EFFECT ON OTHER RULINGS:
NY N061799, dated August 27, 2009, is hereby affirmed.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division