Reconsideration of New York Ruling Letter (NYRL) D85692; Spicy Flavored Drink Base

HQ 962848 October 6, 1999 CLA-2 RR:CR:GC 962848K CATEGORY: Classification TARIFF NO.: 2106.90.9500; 2106.90.9700; 2106.90.9972 Ms. Nora Martin UFL Foods Group Co. 450 Superior Boulevard Mississauga, Ontario Canada L5T 2R9 RE: Reconsideration of New York Ruling Letter (NYRL) D85692; Spicy Flavored Drink Base Dear Ms. Martin: In response to your letter dated December 14, 1998, Customs issued NYRL D85692, dated February 11, 1999, concerning the classification of two “Bloody Caesars” Drink Mix Bases from Canada. Based on a Customs laboratory report that one of the mixes, Spicy Flavor Drink Base V514A, contained 12 percent of sucrose (sugar), the ruling held that the product was classified in subheading 2106.90.9500, Harmonized Tariff Schedule of the United States (HTSUS), as other articles of food preparations not elsewhere specified or included, containing over 10 percent by dry weight of sugar as described in additional U.S. note 3 to chapter 17, if within the quantitative limitations as described in additional U.S. note 8 to chapter 17, and entered pursuant to its provisions. If the quantitative limitations have been reached, the product would be classified in subheading 2106.90.9700, HTSUS, an over the tariff rate quota provision. In your letter dated February 11, 1999, to the Customs National Commodity Specialist Division, N.Y., you requested reconsideration of the ruling. Your letter was referred to this office. We regret the delay in responding. FACTS: As stated in NYRL D85692, the specifications submitted for Spicy Flavor V514A claimed that it contained 9 percent sucrose. However, Customs Laboratory Report 2-99-20778 dated February 9, 1999, determined that a sample of the product contained 12 percent sucrose. In the request for further reconsideration, another sample was submitted with an independent laboratory report indicting that the product contained 8.6 percent of sucrose . Customs Laboratory Report 2-1999-20905 dated April 2, 1999, determined that the second sample submitted for V514A contained 8.95 percent of sucrose. Customs no longer has the first sample for retesting. Based on the additional information, reconsideration of NYRL D85692 is requested, and presumedly, classification is requested in subheading 2106.90.9972, HTSUS, a provision not subject to tariff rate quotas. ISSUE: The issue is whether NYRL D85692 is correct based on the facts as described above. LAW AND ANALYSIS: Other articles of food preparations not elsewhere specified or included in the HTSUS, containing over 10 percent by dry weight of sugar as described in additional U.S. note 3 to chapter 17, if within the quantitative quota limitations as described in additional U.S. note 8 to chapter 17, and entered pursuant to its provisions, are classified in subheading 2106.90.9500, HTSUS. If the quantitative quota limitations have been reached, the articles are classified in subheading 2106.90.9700, HTSUS, an over the tariff rate quota provision. Other food preparations for the manufacture of beverages not elsewhere specified or included in the HTSUS, containing sugar derived from cane and/or sugar beets (less than 10 percent), are classified in subheading 2106.90.9972, HTSUS, a provision not subject to tariff rate quotas. It is a question of fact concerning the amount of sugar contained in the product Spicy Flavored Drink Base, V514A that determines its classification and whether it is or is not subject to the tariff rate quota provisions. The best evidence available in issuing NYRL D85692 was the Customs laboratory report of February 9, 1999, that the product contained 12 percent sucrose (sugar) as compared to the specifications submitted with the ruling request indicating 9 percent. Accordingly, NYRL D85692 is correct based on this factual situation and there is no reason to revoke or to modify a correct ruling based on the facts stated therein as applied to the law. The independent laboratory report you submitted for another sample of Spicy Flavored V514A stated that the product contains 8.6 percent and the Customs laboratory report of April 2, 1999, reports that the second sample submitted contains 8.95 percent of sucrose. We can only conclude that the first sample tested by Customs was not the same product as the second sample. HOLDING: If the product Spicy Flavored Drink Base V514A contains over 10 percent of sugar, it is classified in subheading 2106.90.9500, HTSUS, as other articles of food preparations not elsewhere specified or included in the HTSUS, containing over 10 percent by dry weight of sugar as described in additional U.S. note 3 to chapter 17, if within the quantitative limitations as described in additional U.S. note 8 to chapter 17, and entered pursuant to its provisions. If the quantitative limitations have been reached, the articles are classified in subheading 2106.90.9700, HTSUS, an over the tariff rate quota provision. If the product Spicy Flavored Drink Base V514A contains less than 10 percent of sugar, it is classified in subheading 2106.90.9972, HTSUS, as other food preparations for the manufacture of beverages not elsewhere specified or included in the HTSUS, containing sugar derived from cane and/or sugar beets (less than 10 percent), a provision not subject to tariff rates quotas. NYRL D85692 is affirmed based on the facts contained therein. Sincerely, John Durant, Director Commercial Rulings Division