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HQ 087089

May 16, 1990

CLA-2:CO:R:C:G 087089


TARIFF NO.: 1701.99

Mr. Mark T. Land
Boiron Borneman
1208 Amosland Road
Norwood, PA 19074

RE: Modification of Headquarters Ruling Letter 081662; Sugar pellets

Dear Mr. Land:

In Headquarters Ruling Letter (HRL) 081662, dated September 19, 1988, you received, on your behalf, a ruling on the classification of sugar pellets produced in France. In that ruling the products at issue were to be classified in subheading 2106.90.50, of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), subsequent to the implementation of the Harmonized System. That subheading provides for food preparations not elsewhere specified or included: other: subject to quotas established pursuant to Section 22 of the Agricultural Adjustment Act, as amended. Pursuant to 177.9 of the Customs Regulations (19 C.F.R. 177.9), we are modifying HRL 081662.


The sugar pellets consist of 85 percent sucrose and 15 percent lactose. The pellets are stated to have an imported cost of $2.37 per pound, and are small spheres of about 2 mm in size and with a mass of about 50 mg. The product will be imported in bulk for use as a base or carrier for pharmaceutical products.


What is the correct classification for the sugar pellets?



Our regulations allow for the modification or revocation of ruling letters. As stated in 19 C.F.R. 177.9(d)(1), "[a]ny ruling letter found to be . . . not in accordance with the
current views of the Customs Service may be modified or revoked. Modification or revocation shall be effected by Customs Headquarters by giving notice to the person to whom the ruling letter was addressed . . . ." As provided in 177.9(d)(2), "[t]he modification or revocation of a ruling letter will not be applied retroactively with respect to the person to whom the ruling was issued, or to any person directly involved in the transaction to which that ruling related . . . ."


Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's), taken in order. When goods are prima facie classifiable under two or more headings GRI 3 is applicable. In this case classification is determined by application of GRI 3(b) which provides in pertinent part:

Mixtures . . . shall be classified as if they consisted of the material which gives them their essential character.

In general, essential character has been construed to mean the attribute which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure, core or condition of the article. In addition, the Explanatory Notes provide further factors which help determine the essential character of goods. Factors such as bulk, quantity, weight or value, or the role of a constituent material in relation to the use of the goods are to be utilized, though the importance of certain factors will vary between different kinds of goods.

The sugar would impart the essential character of the product at issue. Not only is the sugar the overwhelmingly main ingredient in terms of percentages, it also is the ingredient which is the core of the article. Though the product will be used, subsequent to importation, as a carrier for pharmaceuticals, "[i]t is well settled that, . . ., imported merchandise must be classified with reference to its condition when imported." United States v. Citroen, 223 U.S. 407, 32 S.Ct. 256, 56 L. Ed. 486 (1911). "Condition as imported refers to the condition of the goods when they are brought within the jurisdiction of the United States with intent to unlade." The Sherwin-Williams Co. v. United States, 38 CCPA 13, 18, C.A.D. 432 (1950). Therefore the headings for sugar would be the proper classification for the product at issue.


The product at issue, sugar pellets from France, is properly classified in subheading 1701.99.00, HTSUSA, which provides for cane or beet sugar and chemically pure sucrose, in solid form: other: other. Under this subheading the merchandise is subject to the quota and fees provided in additional U.S. Note 3 to Chapter 17, HTSUSA. The rate of duty is 1.4606 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 0.943854 cents per kilogram.

HRL 081662, is hereby modified pursuant to 177.9 of the Customs Regulations. While the modification is effective immediately, it is prospective in nature, and there is no effect on previous Customs transactions.


John Durant, Director
Commercial Rulings Division

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