HQ 085387: Reconsideration of NYRL 839590

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                      HQ 085387

                                  October 31, 1989



          CLA-2:CO:R:C:G  085387  SR

          CATEGORY:  Classification

          TARIFF NO.:  1901.90.3040

          Mr. John S. Anderson
          Sonnenberg, Anderson, O'Donnell & Rodriguez
          200 West Adams Street
          Suite 2625
          Chicago, IL 60606

          RE: Reconsideration of NYRL 839590

          Dear Mr. Anderson:

               This is in reference to your letter dated August 7, 1989,
          requesting reconsideration of New York Ruling Letter (NYRL)
          839390, dated April 27, 1989, concerning powdered tropical drink
          mixes from Columbia.

          FACTS:

               The merchandise at issue consists of powdered tropical drink
          mixes called El Rodeo.  They were classified in NYRL 839390,
          dated April 27, 1989, under subheading 1901.90.3040, HTSUSA, as
          food preparations of goods of headings 0401 to 0404, not
          elsewhere specified or included, articles of milk or cream not
          specially provided for, other.  The importer claims that they
          should be classified under subheading 2106.90.5050, HTSUSA, as
          other food preparations not elsewhere specified or included.

               The following facts are provided by the importer:

               The tropical drink mixes will be available in five flavors-
          blackberry, banana-orange, passion fruit, caruba fruit, and
          guanabana fruit.  The ingredients for each flavor by weight are





















                                         -2-

          as follows:

               1.  Banana-Orange
                      Sugar                  48%
                      Powdered Milk          48%
                      Other Ingredients       4%

               2.  Passion Fruit
                      Sugar                  46%
                      Powdered Milk          50%
                      Other Ingredients       4%

               3.  Caruba Fruit
                      Sugar                  56%
                      Powdered Milk          41%
                      Other Ingredients       3%

               4.  Guanabana Fruit
                      Sugar                  45%
                      Powdered Milk          51%
                      Other Ingredients       4%

               5.  Blackberry Fruit
                      Sugar                  59%
                      Powdered Milk          38%
                      Other Ingredients       3%

               The "Other Ingredients" contained in each of the tropical
          drink mix flavors are:  Vitamin A, Vitamin C,
          Carboxymethylcellulose, Citric Acid, Calcium Carbonate,
          Phosphorous, Vitamin D, Artificial Colors, Artificial Flavors.

               The drinks are imported and sold in foil pouches.  They are
          prepared by adding water and blending.  Each pouch produces four
          glasses of fruit drink.

          ISSUE:

               What is the classification of the merchandise at issue?























                                         -3-

          LAW AND ANALYSIS:

               The importer claims that the drink should be classified as
          other food preparations.  This classification was reached by an
          essential character analysis of the ingredients.  The NY
          classification of subheading 1901.90.3040, HTSUSA, was determined
          by GRI 1.  Classification of goods under the HTSUSA is governed
          by the General Rules of Interpretation (GRI), taken in order.
          GRI 1 provides that "classification shall be determined according
          to the terms of the headings and any relative section or chapter
          notes, and provided such headings or notes do not otherwise
          require, according to [the remaining GRI'S taken in order]."

               Subheading 1901.90.30, HTSUSA, provides for food
          preparations of goods of headings 0401 to 0404, not containing
          cocoa power or containing cocoa powder in a proportion by weight
          of less than 10 percent, not elsewhere specified or included,
          other, articles of milk not specially provided for, other.
          Subheading 0402.10.00, HTSUSA, provides for milk, concentrated or
          containing added sugar or other sweetening matter, in powder, of
          a fat content, by weight, exceeding 1.5 percent.  The sweetened
          milk ingredient in the powdered drink mix does qualify for this
          provision.

               The importer claims that the merchandise at issue cannot be
          classified under Subheading 1901.90.3040, HTSUSA, because of an
          exception in the Explanatory Notes to heading 0402, HTSUSA.  The
          Explanatory Notes constitute the official interpretation of the
          tariff at the international level.  The Explanatory Notes state
          that heading 0402, HTSUSA, does not cover beverages consisting of
          milk flavored with cocoa or other substances.  This does not
          affect the milk at issue.  Heading 1901, HTSUSA, provides for
          food preparations of goods of 0401 to 0404.  The powered drink
          mix is composed of sweetened milk of heading 0402, HTSUSA;
          however, because of the addition of the flavorings and other
          ingredients it is not classified under the milk provision.  The
          Explanatory Notes to heading 1901, HTSUSA, state the following:

                 The preparations of this heading may be distinguished from
               the products of headings 04.01 to 04.04 in that they
               contain, in addition to natural milk constituents, other
               ingredients not permitted in the products of those earlier
               headings.  Thus heading 19.01 included, for example:



















                                         -4-

               (1)  Preparations in powder or liquid form used as infant
               food or for dietetic purposes and consisting of milk to
               which secondary ingredients have been added.

          Under GRI 1 the merchandise at issue must be classified under
          subheading 1901.90.3040, HTSUSA.

          HOLDING:

               The powdered drink mix at issue is classifiable under
          subheading 1901.90.3040, HTSUSA, which provides for food
          preparations of goods of headings 0401 to 0404, other articles of
          milk not specially provided for, other.  The rate of duty is 17.5
          percent ad valorem.  This product will also be subject to the
          quota restrictions of subheading 9904.10.60, HTSUSA.  NYRL
          839590, dated April 27, 1989, is hereby affirmed.

                                             Sincerely,




                                             John Durant, Director
                                             Commercial Rulings Division








































          6 cc A.D. New York Seaport
          1 cc Durant
          1 cc legal reference