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HQ 965462

July 16, 2002

CLA-2: RR:CR:GC 965462 DBS


TARIFF NO.: 1701.11.50

Port Director
U.S. Customs Service
1500 Port Blvd.
Miami, FL 33102

RE: Protest 5201-01-100292; Sugar; Certificate of Quota Eligibility; “clerical error”

Dear Port Director:

This is our decision on Protest 5201-01-100292 filed against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of raw sugar. The entries were liquidated on April 5, 2001, and the protest timely filed on April 26, 2001.


The subject merchandise is described as “Panela prepartida” and “Panela redonda fraccionada.” It is imported from Colombia. Documentation submitted with the protest includes a statement of analysis showing a minimum sucrose content of 73% and a maximum sucrose content of 83%, and a statement that the sugar complies with the requirements of the Colombian Health Department, pursuant to resolutions 4127 of 1991 and 002284 of June 27, 1995, that the Colombian producer’s sugar contains no colorants or decolorants.

At entry, the protestant submitted a certified copy of the original certificate of eligibility. The space provided in the certificate for the quantity of sugar was blank. You forwarded a copy of the certificate to the United States Department of Agriculture (USDA) for review, and inquired whether a certified copy was acceptable in lieu of an original green copy.

The USDA responded that without a stated quantity, the copy was not valid.

The goods were classified in the over-quota subheading 1701.99.50, HTSUS, as other cane or beet sugar and chemically pure sucrose in solid form. Protestant contends the goods are classifiable in the in-quota subheading 1701.11.10, HTSUS, which provides for Cane or beet sugar and chemically pure sucrose in solid form: raw sugar not containing added flavoring or coloring matter: Cane sugar.


Whether the instant raw sugar is classifiable in an in-quota tariff rate subheading, namely subheading1701.11.10, HTSUS.


Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that articles are to be classified by the terms of the headings and relative Section and Chapter Notes. For an article to be classified in a particular heading, the heading must describe the article, and not be excluded therefrom by any legal note. In the event that 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.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

Cane or beet sugar and chemically pure sucrose, in solid form: Raw sugar not containing added flavoring or coloring matter:

Cane sugar:

Described in additional U.S. note 5 to this chapter and entered pursuant to its provisions





“Panela” is an unrefined organic sugar from Colombia. It is whole unrefined non-centrifugal cane sugar, which is derived from crushing raw sugar cane to extract the juice, then boiling the juice to evaporate the water. See Panela Sugar Corporation Web Site, www.panela.cwc.net, visited on July 12, 2002, and Panela International Sugar Corporation, www.sugarweb.co.uk/panela, visited on July 12, 2002.

According to the subheading text in the HTSUS, whether Panela is classifiable in subheading 1701.11.10, HTSUS, is dependent upon the requirements of Additional U.S. Note 5 to chapter 17, HTSUS. Additional U.S. Note 5(b)(iv) states, “The United States Trade Representative may promulgate regulations appropriate to provide the allocations authorized pursuant to this note. Such regulations may, among other things, provide for the issuance of certificates of eligibility to accompany any sugarsimported from any country or area for which an allocation has been provided and such minimum quota amounts as may be appropriate to provide reasonable access to the U.S. market for articles of the product of those countries or areas having small allocations.”

The United States Trade Representative has promulgated regulations, requiring, among other things, that certificates of quota eligibility accompany sugar imported from a foreign country, pursuant to 15 CFR § 2011(A). 15 CFR § 2011.101 provides:

General. This subpart sets forth the terms and conditions under which certificates of quota eligibility will be issued to foreign countries that have been allocated a share of the U.S. sugar tariff-rate quota. Except as otherwise provided in this subpart, sugar imported from a foreign country may not be entered unless such sugar is accompanied by a certificate of quota eligibility. This subpart applies only to the ability to enter sugar at the in-quota tariff rates of the quota (subheadings 1701.11.10, 1701.12.10, 1701.91.10, 1701.99.10, 1702.90.10, and 2106.90.44 of the HTS). Nothing in this subpart shall affect the ability to enter articles at the over-quota tariff rate (subheadings 1701.11.50, 1701.12.50, 1701.91.30, 1701.99.50, 1702.90.20, 2106.90.46).

15 CFR § 2011.103 provides, in pertinent part:

(a) General. Except as otherwise provided in §§ 2011.104, 2011.109, and 2011.110, no sugar that is the product of a foreign country may be permitted entry unless at the time of entry the person entering such sugar presents to the appropriate customs official a valid and properly executed certificate of quota eligibility for such sugar.

As the protestant did not submit a valid certificate of quota eligibility, which is required for in-quota tariff rate entry under subheading 1701.11.10, HTSUS, the sugar can only be entered under an over-quota classification, which, in this case, is under subheading 1701.11.50, HTSUS. However, you liquidated the goods under subheading 1701.99.50, HTSUS.

Without a valid certificate of quota eligibility, the sugar cannot be classified in subheading 1701.11.10, HTSUS. As the Panela is unrefined, and the importer submitted documentation that the Panela has no added colorants or decolorants, it is classifiable in subheading 1701.11.50, HTSUS, which provides for, “Cane or beet sugar and chemically pure sucrose, in solid form; raw sugar not containing added flavoring or coloring matter: Cane sugar: other.”

The protestant claims that an inadvertent clerical error was made classifying the sugar in subheading 1701.99.50, HTSUS, rather than 1701.11.10, HTSUS. A claim of “clerical error” is made pursuant to 19 U.S.C. §1520(c)(1). As this is a timely protest, filed pursuant 19 U.S.C. §1514(c), and the issue of tariff classification can be resolved within the its parameters, it is unnecessary to address a claim of "clerical error" under 19 U.S.C. §1520(c)(1).

You may, if appropriate, inform the protestant that, pursuant to15 CFR §2011.104, an importer may apply to the Secretary of Agriculture for a waiver of the requirements of 15 C.F.R. §2011 (A) in certain circumstances. The waiver is provided for as follows:

(a) General. The Secretary may waive, with respect to individual shipments, any or all of the requirements of this subpart [15 C.F.R. §2011 (A)] if he or she determines that a waiver will not impair the proper operation of the sugar quota system, that it will not have the effect of modifying the allocation of sugar made pursuant to the provisions of subdivision (b) of additional U.S. Note 5, and that such waiver is justified by unusual, unavoidable, or otherwise appropriate circumstances. Such circumstances include, but are not limited to, loss or destruction of the certificate, unavoidable delays in transmittal of the certificate to the port of entry, and clerical errors in the execution or issuance of the certificate.

(b) Request for waiver. The request for a waiver must be made to the Secretary in writing. The request need not follow any specific format. However, the request should set forth in detail all pertinent information relating to the shipment in question and the basis upon which the waiver should be granted.

(c) Issuance of waiver. The Secretary shall notify, in writing, the applicant for the waiver and the Secretary of the Treasury of any waiver granted under the authority of this section. The Secretary may attach any terms, conditions or limitations to the waiver which he or she determines are appropriate.


Panela prepartida” and “Panela redonda fraccionada” are classifiable in subheading 1701.11.50, HTSUS, which provides for, “Cane or beet sugar and chemically pure sucrose, in solid form; raw sugar not containing added flavoring or coloring matter: Cane sugar: other.”

You are instructed to DENY the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.


Myles B. Harmon, Acting Director
Commercial Rulings Division

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