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HQ 967647

February 24, 2006

CLA-2 RR:CTF:TCM 967647ptl


TARIFF NO.: 1701.99.1090, 1701.99.5090

John B. Pellegrini, Esq.
McGuire Woods LLP
1345 Avenue of the Americas
New York, NY 10105-0106

RE: Reconsideration of NY R01351; Affirmed

Dear Mr. Pellegrini:

This is in response to your letter of March 30, 2005, on behalf of Commodity Specialists Company, requesting reconsideration of the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a ruling that had been issued to them on a product which is described as a sugar/citric acid blend. The ruling also addressed the country of origin marking requirements and whether the product qualifies as an originating good under the NAFTA. You are not seeking reconsideration of that portion of the ruling.

You have described the product under consideration as being a sugar/citric acid blend. New York Ruling Letter (NY) R01351, dated February 18, 2005, classified the product in subheadings 1701.99.1090, HTSUS, which provides for “Cane or beet sugar and chemically pure sucrose, in solid form: Other: Other: Described in additional U.S. note 5 to this chapter and entered pursuant to its provisions” or, if the product does not satisfy the requirements of additional U.S note 5 to chapter 17, the product is classified in subheading 1701.99.5090, HTSUS, the over-quota provision. In your request for reconsideration, you contend that the product should be classified in subheading 2106.90.99, HTSUS, which provides for “Food preparations not elsewhere specified or included: Other: Other: Preparations for the manufacture of beverages: Containing sugar derived from sugar cane and/or sugar beets.”

In preparing this decision, we have also considered points you raised during a teleconference held on February 10, 2006, and follow-up comments you submitted.


According to information you provided, the product being considered consists of a mixture of 95 percent to 98 percent cane or beet sugar with the balance being citric acid. The sugar will be of United States or Mexican origin. The ingredients will be blended in Mexico. The mixed product will be imported in bulk bags. After importation into the United States, the mixed product will be used in the manufacture of beverages and drink mixes.


Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, 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 GRIs may then be applied in order.

The HTSUS subheadings under consideration are as follows:

1701 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



1701.99.5090 Other

2106 Food preparations not elsewhere specified or included: 2106.90 Other:
2106.90.99 Other
Preparations for the manufacture of beverages:

2106.90.9972 Containing sugar derived from sugar cane and/or sugar beets

You contend that the product should be classified in subheading 2106.90.99, HTSUS, which provides for “Food preparations, not elsewhere specified or included, Other.” Your reasoning is that the language of Chapter 17 does not include articles that contain citric acid or anything that is “other than flavoring or coloring.” You state that “[t]he fact that sugar blended with coloring or other flavoring is specifically provided for is a clear indication that blends of sugar with other types of ingredients are not covered.”

The arguments you made in your initial submission and reiterated in the teleconference and subsequent memorandum all depend on the ability to classify the product under consideration by virtue of GRI 1, which provides, in relevant part, “classification shall be determined by the terms of the headings.” However, this particular product has been obtained by mixing two ingredients: cane or beet sugar, which are classified in heading 1701, and citric acid, which is classified in the tariff as an acid in heading 2918. You have characterized the product as being a blend. Another word for a blend is “mixture.”

As stated above, classification of goods under the HTSUS, is governed by the General Rules of Interpretation (GRI), 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:

Mixtures, composite goods consisting of different materials or made up of different components, . . . shall be classified as if they consisted of the material or component which gives them their essential character.

CBP has consistently classified mixtures of sugar and other ingredients in heading 1701, HTSUS, when an analysis of the mixture indicated that it was the sugar that gave the mixture its essential character. In HQ 085105, dated July 31, 1989, CBP considered the classification of a mixture consisting of 47 percent sucrose, 51.5 percent malto-dextrin and 3 percent starch. In deciding the mixture was classified in subheading 1701.99, CBP stated:

“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 indespensible (sic) to the structure, core or condition of the article.” Harmonized System Handbook: A Guide to the New U.S. Tariff, Office of Reg. & Rulings, U.S. Customs Service, (August 1986), page 14.

Both the sucrose and the malto-dextrin are about equal in proportion and value. However, this product will be used to make glazes and icings, which are sugar based products with the characteristic of sweetness. Therefore, the essential character of this blend is imparted by the sucrose. While the malto-dextrin is a sugar, it is not used for its sweetness.

In summary, the purpose of this product is for the production of sweet toppings such as icings and glazes. The source of the sweetness is the sucrose. The malto-dextrin in this product has a secondary function as a filler and as an aid in the congealing process.

In HQ 966092, dated March 25, 2003, CBP addressed the argument you have raised for excluding substances other than coloring or flavoring in Chapter 17 as follows:

Protestant also claims that heading 1701, HTSUS, to the extent it allows any additions to the sugar, applies only to sugars flavored or colored. While this may be true using a GRI 1 analysis, the product here, as explained above, requires a GRI 3 analysis. No heading describes the substance at GRI 1. GRI 2(b) allows for the expansion of headings. We have consistently classified such blends in heading 1701, HTSUS. For example, see NYG86340, dated January 29, 2001, 99% sugar, 1% gelatin; NYG86384, dated February 8, 2001, 95% sugar, 5% gelatin; NYG86512, dated February 12, 2001, 99% sugar, 1% dried apple juice; NYH82796, dated July 12, 2001, 99.5% sugar, .5% cocoa, and NYI86961, dated October 30, 2002, cinnamon sugar and vanilla sugar blends.

The cases you have cited wherein CBP classified mixtures of 95 percent sugar and 5 percent gelatin (NY L82489, dated February 23, 2005) and sugar and artificial sweetener (NY L81341, dated December 2, 2004) in heading 2106, HTSUS, are distinguishable from the instant case. Those rulings dealt with mixtures that had their own commercial identities and were useable as specific food preparations in the condition in which they were imported. Where products were mixtures of sugar and citric acid, CBP has consistently classified the products in heading 1701. See, NY 804980, dated December 19, 1994, and NY G83332, dated November 6, 2000.


For the reasons stated above, the product consisting of 95 percent to 98 percent cane or beet sugar with the balance consisting of citric acid is classified in subheading 1701.99.1090, HTSUS, which provides for “cane or beet sugar and chemically pure sucrose, in solid form: other: other: described in additional U.S. note 5 to this chapter and entered pursuant to its provisions, other.” The rate of duty will be 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 will be 1701.99.5090, HTSUS. The duty rate will be 35.74 cents per kilogram.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.


NY R01351, dated February 18, 2005, is affirmed.


Myles B. Harmon, Director

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