HQ 086215: Icing premix; "Pettinice Premix"

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 086215

                      March 27, 1990


CLA-2:CO:R:C:G 086215 SER

CATEGORY:  Classification

TARIFF NO.: 1901.90.8040

Mr. L. R. Johnson
Australian Bakels (PTY) Ltd.
P.O Box 147
Lidcombe, NSW 2141 Australia

RE:  Icing premix; "Pettinice Premix"

Dear Mr. Johnson:

     This is in reference to your request for reconsideration of
New York Ruling Letter (NYRL) 847486, dated December 18, 1989.
In that ruling letter the product at issue, an icing premix,
labeled "Pettinice Premix", from Australia was classified in
subheading 1901.90.8040 of the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), which provides for food
preparations of goods of heading 0401 to 0404: other: other.

FACTS:

     The product at issue is described as a concentrate or premix
which will be made into an icing.  The powder consists of:

     1. 29.5 percent sucrose
     2. 27.8 percent gum tragacanth
     3. 25.1 percent non fat milk solids
     4. 06.4 percent modified starch
     5. 05.35 percent titanium dioxide
     6. 05.35 percent potassium sorbate
     7. 00.5 percent vanillin

ISSUE:

     Is the product at issue more specifically provided for in
Heading 1901 or Heading 2106 of the HTSUSA?






                               -2-



LAW AND ANALYSIS:

     Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI'S), 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.

     Heading 1901 provides for food preparations of goods of
headings 0401 to 0404, not containing cocoa powder . . .: other:
other: provided for in subheading 9904.10.75, HTSUSA.  Subheading
9904.10.75, HTSUSA, provides for dried milk . . . which contains
not over 5.5 percent by weight of butterfat and which is mixed
with other ingredients, including but not limited to sugar, if
such mixtures contain over 16 percent milk solids by weight, are
capable of being further processed or mixed with similar or other
ingredients and are not prepared for marketing to the retail
consumers in the identical form and package in which imported.

     This product, which is based on a sweetened low fat milk of
heading 0402, is most specifically described in subheading
1901.90.8040, HTSUSA.  You state that the product at issue should
be classified in heading 2106, HTSUS, which provides for food
preparations not elsewhere specified or included.  We disagree.
Though the milk ingredients may not give this product its
essential character, it still is one of the primary ingredients
and thus, subheading 1901.90.8040, HTSUSA, more specifically
describes this product than do the subheadings of 2106, HTSUS.
Because it is possible to classify this product by the terms of
the headings in accordance with GRI 1, it is not necessary to
move to a determination of essential character that would be
required by GRI 2 and 3.

     You also note in your letter of January 5, 1990, that the
product being imported does not necessarily need to include the
milk and that it could be added in the manufacturing process in
the United States.  Regardless of that fact, "(it) is well
settled that . . . imported merchandise must be classified with
reference to its condition when imported."  United States v.
Citroen, 223 U.S. 407, 32 S. Ct. 256, 56 L. Ed. 486 (1911).
"Condition as imported refers to the condition of the goods when
they are brought within the jurisdiction of the United States
with the intent to unlade."  The Sherwin-Williams Co. v.United
States, 38 CCPA 13, 18 C.A.D. 432 (1950).  As long as the
merchandise at issue contains milk when it reaches the
jurisdiction of the United States this must be considered in the
classification determination made by the Customs Service.  If you
plan to import products with different ingredients, we can
respond to ruling requests on those products.





                               -3-



HOLDING:

     The product at issue, "Pettinice Premix", an icing premix
from Australia, is properly classified in subheading
1901.90.8040, HTSUSA, which provides for food preparations of
goods of headings 0401 to 0404, not containing cocoa powder . . .
other: other: subject to quotas established pursuant to section
22 of the Agricultural Adjustment Act, as amended . . . provided
for in subheading 9904.10.75, HTSUSA.  The rate of duty is 10
percent ad valorem for a product classified in subheading
1901.90.8040, HTSUSA.  The quota restriction is "none", thus, the
product at issue is precluded from entry into the United States.

     New York Ruling Letter 847486 is affirmed.

                                   Sincerely,



                                   John Durant, Director
                                   Commercial Rulings Division