Revocation of HQ 964497, HQ 967563, NY 805860, NY 807382, NY 806349, NY A81526, NY B83306, NY B86542, NY D80530, NY D83344, NY D83345, NY F89359, NY H82031, NY H85600, NY L82138, NY N015991, NY N019259, NY N045475, NY N073508, NY R01312, NY N251352, NY N235188, NY 803800, NY N238296, NY 870767, NY 883426, NY 863959, NY N015994 and HQ 083698; Modification of HQ 963668, NY 807225, NY N042679, NY 818773, NY B86441, NY G89465, NY L88611, NY A86301, NY C82414, NY C82415, NY I87369, NY R01313, NY N158039, NY 860227, NY 804357, HQ 951849, NY 869626, NY C82572, NY C89506, NY A87589, NY A89697 and NY B80099; Classification of drink mixes.

March 18, 2020 HQ H157219 OT:RR:CTF:FTM H157219 TSM CATEGORY: Classification TARIFF NO.: 2106.90; 1701; 1702 Mr. John M. Peterson Mr. Curtis W. Knauss Neville Peterson LLP 80 Broad Street, 34th Floor New York, N.Y. 10004 RE: Revocation of HQ 964497, HQ 967563, NY 805860, NY 807382, NY 806349, NY A81526, NY B83306, NY B86542, NY D80530, NY D83344, NY D83345, NY F89359, NY H82031, NY H85600, NY L82138, NY N015991, NY N019259, NY N045475, NY N073508, NY R01312, NY N251352, NY N235188, NY 803800, NY N238296, NY 870767, NY 883426, NY 863959, NY N015994 and HQ 083698; Modification of HQ 963668, NY 807225, NY N042679, NY 818773, NY B86441, NY G89465, NY L88611, NY A86301, NY C82414, NY C82415, NY I87369, NY R01313, NY N158039, NY 860227, NY 804357, HQ 951849, NY 869626, NY C82572, NY C89506, NY A87589, NY A89697 and NY B80099; Classification of drink mixes. Dear Messrs. Peterson and Knauss: This letter concerns Headquarters Ruling Letter (“HQ”) 963668, which U.S. Customs and Border Protection (“CBP”) issued to you on June 23, 2000, pertaining to the classification of “KLASS Aguas Frescas” Flavored Powdered Drink Mixes, imported packaged for retail sale and containing between 79% and 90% of sucrose, fructose or dextrose, under the Harmonized Tariff Schedule of the United States (“HTSUS”). This letter also concerns the following rulings: HQ 964497, dated January 23, 2001 (classifying cherry and orange drink mixes, imported in 24-ounce packages and containing between 87% and 96% sugar, intended for sale in supermarkets); HQ 967563, dated November 4, 2005 (classifying drink mixes containing between 80% and 85% sugar, imported in 2,400 to 2,700 pound bulk bags and repackaged into various sizes for industrial, food service and retail sale after importation); New York Ruling Letter (“NY”) 805860, dated January 25, 1995 (classifying drink mixes containing over 85% sugar, imported in containers ranging from 19 ounces net weight to 5 pounds 3 ounces net weight and sold to grocery stores and warehouse clubs); NY 807382, dated February 28, 1995 (classifying drink mixes containing over 85% sugar, imported in containers ranging from 19 ounces net weight to 5 pounds 3 ounces net weight and sold to grocery stores and warehouse clubs); NY 806349, dated January 31, 1995 (classifying drink mixes containing between 90% and 96% sugar, imported in 2000 pound drums and packaged into smaller packages for retail sale after importation); NY 807225, dated February 28, 1995 (classifying fruit flavored beverage crystals containing 94% sugar, imported in retail packages weighing between 240 and 300 grams, in food service packages for restaurants weighing between 450 and 500 grams and in food service packages for cafeterias in 25 pound cartons);  NY 818773, dated February 22, 1996 (classifying various grape flavored drink mixes, containing between 95% and 98% sugar: Grape Aid 0, Grape Aid 51, and Grape Aid 35, which are packaged for retail sale);  NY A81526, dated April 2, 1996 (classifying “Flavour Crystals” containing 95% sugar, imported in a foil package containing 480 grams that is mixed with water to produce 4.55 liters of a finished beverage); NY A86301, dated August 19, 1996 (classifying a lemonade mix containing 64.82% sugar, imported into the United States in bulk to be repackaged for retail sale); NY B83306, dated March 25, 1997 (classifying powdered drink mixes containing between 75% and 95% sugar, imported in 2000 pound bags); NY B86542, dated June 24, 1997 (classifying a variety of powdered, fruit-flavored drink mixes containing unspecified amounts of sugar, imported in two pound packages shipped 15 to a case, or in one ton tote bags which will be repackaged for retail sale); NY B86441, dated June 26, 1997 (classifying crystal drink mixes containing unspecified amounts of sugar and imported in individual packages);  NY C82414, December 8, 1997 (classifying powdered instant beverage products in four flavors, containing unspecified amounts of sugar and imported in retail containers); NY C82415, December 8, 1997 (classifying powdered instant beverage products in four flavors, containing unspecified amounts of sugar and imported in retail containers); NY D80530, dated August 7, 1998 (classifying drink crystals containing 95% sugar, in four flavors that are imported 450 gram, 540 gram and 900 gram pouches, or tins for sale to the retail consumer); NY D83344, dated October 30, 1998 (classifying powdered drink mixes, containing at least 75 percent sugar with no less than 12 percent fructose, imported with a net weight of 19 ounces); NY D83345, dated October 27, 1998 (classifying powdered drink mixes containing at least 87% sugar, imported in packages of 24 ounces); NY F89359, dated August 2, 2000 (classifying a powdered beverage mix containing an unspecified amount of sugar, imported for retail sale in 250-gram packages); NY G89465, dated April 30, 2001 (classifying “Xuky,” a milkshake powder in five flavors: vanilla, pineapple, strawberry and coconut, containing 97% sugar);  NY H82031, dated June 5, 2001 (classifying two types of powdered fruit or vegetable juices: (1) “Zuko” juice, containing 87.19% sugar and imported in 45 gram sachets and 405 gram bags; and (2) “Zuko Diet” juice, containing 75.29% maltodextrin and imported in 20 gram pouches);  NY H85600, dated November 6, 2001 (classifying powdered soft drinks containing over 89% sugar, imported packaged for retail sale in foil packs having a net weight of 110 grams);  NY I87369, dated November 19, 2002 (classifying a beverage mix containing 85.6% sugar, packaged in cans, jars, and pouches for retail sale, and in larger bulk containers for the food service industry); NY L82138, dated February 14, 2005 (classifying a powdered drink mix containing 79% sugar and imported in foil packets containing 50 grams each); NY L88611, dated December 5, 2005 (classifying “Xuky” products - milkshake powders in four flavors: vanilla, strawberry, coconut and pineapple, containing 86% to 97% sugar and imported in 450-gram plastic containers);  NY N015991, dated September 10, 2007 (classifying Instant Strawberry artificial flavored powder imported in pouches in two sizes, 7 ounces (200 grams) and 14 ounces (400 grams), and containing 87.82% sugar); NY N019259, dated November 20, 2007 (classifying an “Apple Cider” powdered beverage mix, imported in a 2 pound bag and containing an unspecified amount of sugar); NY N042679, dated November 26, 2008 (classifying “Ice Ade” powder soft drink mixes, imported in flavors cherry, tropical punch, orange and lemonade, packaged for retail sale in 15-ounce, multi colored plastic canisters, and containing between 93% and 96% sugar depending on the flavor);  NY N045475, dated November 26, 2008 (classifying powdered drink mixes containing 92.66% sugar, imported into the United States in plastic lined super sacks (totes), scaled out to 1075 kilograms per super sack and packaged in the United States into 0.74 ounce bags for retail); NY N073508, dated September 29, 2009 (classifying a “powder soft drink mix” packaged for retail sale and containing 95.43% sugar); NY R01312, dated February 2, 2005 (classifying drink mixes containing 80% to 85% sugar and imported in 2,400 pound to 2,700 pound bulk bags); NY R01313, dated February 9, 2005 (classifying drink mixes containing 80% to 85% sugar and imported in 2,400 pound to 2,700 pound bulk bags); NY N158039, dated May 13, 2011 (classifying drink mixes containing, depending on drink variety, either 56% (“Zuko Naranja”) or 66% (“Zuko Tamarindo”) dextrose, 9% sucrose, 1% or less, each, aspartame and acesulfame-K, and imported packaged for retail sale in pouches containing 20 grams (0.7 ounces) net weight);  NY N251352, dated April 8, 2014 (classifying drink mixes containing sucrose and artificial sweeteners, and imported packaged for retail sale); NY N235188, dated December 10, 2012 (classifying drink mixes containing sucrose and artificial sweeteners, and packaged for retail sale); NY N238296, dated February 27, 2013 (classifying drink mixes containing 84% sugar and packaged for retail sale); NY N015994, dated September 10, 2007 (classifying drink mixes containing over 87% sugar and 9% maltodextrin, imported in fifty pound bags); NY C82572, dated December 15, 1997 (classifying drink mixes containing between 93.5% and 95% sugar, imported in bulk for retail packaging in the United States); NY C89506, dated July 8, 1998 (classifying drink mixes (imported in five flavors) containing between 75% and 95% sugar, and between 0% and 18% fructose depending on flavor, and imported in 2,000 pound sacks for retail packaging in the United States); NY A87589, dated September 23, 1996 (classifying drink mixes (imported in five flavors) containing between 75% and 95% sugar, and between 0% and 18% fructose depending on flavor, and imported in 2,000 pound sacks for retail packaging in the United States); NY A89697, dated November 27, 1996 (classifying drink mixes containing 95% sugar and imported in one metric ton bags for retail packaging in the United States); NY B80099, dated December 10, 1996 (classifying drink mixes containing over 96% sugar and 0.79% maltodextrin, imported in 2,000 pound bulk bags and 100 pound paper bags, to be repackaged for retail sale upon importation);  NY 863959, dated July 13, 1991 (classifying drink mixes containing between 89% and 97% sugar, depending on the flavor, and imported either packaged for retail sale or in one metric ton containers to be repackaged upon importation); NY 883426, dated March 9, 1993 (classifying drink mixes containing 91.4% sugar and packaged for retail sale in 890 gram cardboard canisters); NY 804357, dated November 22, 1994 (classifying drink mixes containing between 90% and 93% sugar and packaged for retail sale in sachets, jars and canisters);  HQ 083698, dated June 1, 1989 (classifying a drink base mix containing 97.61% sugar and imported in industrial packaging such as 2,000 pound totes and 100 pound bags); NY 803800, dated November 9, 1994 (classifying drink mixes containing sugar and imported packaged for retail sale in 18 ounce, 27 ounce or 40.5 ounce jars, depending on flavor); NY 870767, dated January 29, 1992 (classifying drink mixes containing 89% sugar and imported in one ton tote bags); NY 860227, dated February 20, 1991 (classifying drink mixes containing between 83.28% and 90.13% of either sugar alone or sugar with maltodextrin and corn syrup, depending on the drink mix’s flavor, all packaged for retail sale);  HQ 951849, dated August 11, 1992 (classifying drink mixes either sweetened by sugar or unsweetened, depending on the flavor)  and NY 869626, dated January 2, 1992 (classifying drink mixes containing 91.3% sugar and imported in bulk).  In these rulings, various types of drink mixes consisting of sugar and other ingredients were classified in heading 1701, HTSUS, as “Cane or beet sugar and chemically pure sucrose, in solid form,” or in heading 1702, HTSUS, as “Other sugars, including chemically pure lactose, maltose, glucose and fructose, in solid form; sugar syrups not containing added flavoring or coloring matter; artificial honey, whether or not mixed with natural honey; caramel.” We have reconsidered these rulings and now believe that they are incorrect. For the reasons that follow, we hereby revoke HQ 964497, HQ 967563, NY 805860, NY 807382, NY 806349, NY A81526, NY B83306, NY B86542, NY D80530, NY D83344, NY D83345, NY F89359, NY H82031, NY H85600, NY L82138, NY N015991, NY N019259, NY N045475, NY N073508, NY R01312, NY N251352, NY N235188, NY 803800, NY N238296, NY 870767, NY 883426, NY 863959, NY N015994 and HQ 083698, and modify HQ 963668, NY 807225, NY N042679, NY 818773, NY B86441, NY G89465, NY L88611, NY A86301, NY C82414, NY C82415, NY I87369, NY R01313, NY N158039, NY 860227, NY 804357, HQ 951849, NY 869626, NY C82572, NY C89506, NY A87589, NY A89697 and NY B80099. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published in the Customs Bulletin, Volume 54, No. 4, on February 4, 2020, proposing to revoke the rulings cited above, and to revoke any treatment accorded to substantially identical transactions.  One comment in support of the proposed action was received on or before March 6, 2020. FACTS: The subject merchandise consists of various types of drink mixes that are imported in the form of a powder. Water is added post-importation to turn the mixes into beverages. The mixes come in various flavors, such as lemonade, lemon-lime, orange, grape, mixed berry, cherry, and fruit punch, among others, but all have a similar ingredient list. The largest ingredient in these mixes is sugar. The majority of these mixes contain 80% sugar or more; the rest contain between 60% and 80%. Some of the subject mixes contain sucrose, others dextrose, and others fructose. The mixes also contain a range of other ingredients, such as flavoring, coloring, citric acid, malic acid, pectin, and silicon dioxide, among other things. Given the amount of sugar in these mixes, these other ingredients make up small but varying percentages of the total ingredients. Most of the mixes are imported packaged for retail sale. In the rulings at issue, CBP classified these mixes according to their sugar content, in either heading 1701, HTSUS, which provides for “Cane or beet sugar and chemically pure sucrose, in solid form,” or in heading 1702, HTSUS, which provides for “Other sugars, including chemically pure lactose, maltose, glucose and fructose, in solid form; sugar syrups not containing added flavoring or coloring matter; artificial honey, whether or not mixed with natural honey; caramel.” ISSUE: Whether beverage mixes whose ingredients consist of sugar and other ingredients should be classified according to their sugar content in either heading 1701, HTSUS, or heading 1702, HTSUS, or in heading 2106, HTSUS, as “Food preparations not elsewhere specified or included.” LAW AND ANALYSIS: Classification of goods under the HTSUS is governed by the General Rules of Interpretation (“GRI”). GRI 1 provides that classification shall be determined 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 2 through 6 may then be applied in order. The HTSUS headings at issue are as follows: 1701 Cane or beet sugar and chemically pure sucrose, in solid form: * * * 1702 Other sugars, including chemically pure lactose, maltose, glucose and fructose, in solid form; sugar syrups not containing added flavoring or coloring matter; artificial honey, whether or not mixed with natural honey; caramel: * * * 2106 Food preparations not elsewhere specified or included: 2106.90 Other: Other: Other: Other: Other: Articles containing over 65 percent by dry weight of sugar described in additional U.S. note 2 to chapter 17: 2106.90.92 Described in additional U.S. note 7 to chapter 17 and entered pursuant to its provisions 2106.90.94 Other Articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17: 2106.90.95 Described in additional U.S. note 8 to chapter 17 and entered pursuant to its provisions 2106.90.97 Other 2106.90.98 Other Additional U.S. Note 2 to Chapter 17, HTSUS, reads the following: For the purposes of this schedule, the term “articles containing over 65 percent by dry weight of sugar described in additional U.S. Note 2 to chapter 17” means articles containing over 65 percent by dry weight of sugars derived from sugar cane or sugar beets, whether or not mixed with other ingredients, capable of being further processed or mixed with similar or other ingredients, and not prepared for marketing to the ultimate consumer in the identical form and package in which imported. Additional U.S. Note 3 to Chapter 17, HTSUS, reads the following: For the purposes of this schedule, the term “articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17” means articles containing over 10 percent by dry weight of sugars derived from sugar cane or sugar beets, whether or not mixed with other ingredients, except (a) articles not principally of crystalline structure or not in dry amorphous form, the foregoing that are prepared for marketing to the ultimate consumer in the identical form and package in which imported; (b) blended syrups containing sugars derived from sugar cane or sugar beets, capable of being further processed or mixed with similar or other ingredients, and not prepared for marketing to the ultimate consumer in the identical form and package in which imported; (c) articles containing over 65 percent by dry weight of sugars derived from sugar cane or sugar beets, whether or not mixed with other ingredients, capable of being further processed or mixed with similar or other ingredients, and not prepared for marketing to the ultimate consumer in the identical form and package in which imported; or (d) cake decorations and similar products to be used in the same condition as imported without any further processing other than the direct application to individual pastries or confections, finely ground or masticated coconut meat or juice thereof mixed with those sugars, and sauces and preparations therefor. Additional U.S. Note 7 to Chapter 17, HTSUS, reads the following: The aggregate quantity of articles containing over 65 percent by dry weight of sugars described in additional U.S. note 2 to chapter 17, entered under subheadings 1701.91.44, 1702.90.64, 1704.90.64, 1806.10.24, 1806.10.45, 1806.20.71, 1806.90.45, 1901.20.20, 1901.20.55, 1901.90.52, 2101.12.44, 2101.20.44, 2106.90.74 and 2106.90.92 during the 12-month period from October 1 in any year to the following September 30, inclusive, shall be none and no such articles shall be classifiable therein. Additional U.S. Note 8 to Chapter 17, HTSUS, reads the following: The aggregate quantity of articles containing over 10 percent by dry weight of sugars described in additional U.S. note 3 to chapter 17, entered under subheadings 1701.91.54, 1704.90.74, 1806.20.75, 1806.20.95, 1806.90.55, 1901.90.56, 2101.12.54, 2101.20.54, 2106.90.78 and 2106.90.95 during the 12-month period from October 1 in any year to the following September 30, inclusive, shall not exceed 64,709 metric tons (articles the product of Mexico shall not be permitted or included under this quantitative limitation and no such articles shall be classifiable therein). Additional U.S. Note 2 (b) to Section IV, HTSUS, reads the following: For the purposes of this section, unless the context otherwise requires, the term “capable of being further processed or mixed with similar or other ingredients” means that the imported product is in such condition or container as to be subject to any additional preparation, treatment or manufacture or to be blended or combined with any additional ingredient, including water or any other liquid, other than processing or mixing with other ingredients performed by the ultimate consumer prior to consumption of the product. The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not dispositive or legally binding, the ENs provide a commentary on the scope of each heading of the Harmonized System at the international level. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). The EN to