us-cbp-cross-rulings-hq-083221•HQ 083221: Tariff classification of lemon flavored syrup.
HQ 083221: Tariff classification of lemon flavored syrup.
us-cbp-cross-rulings-hq-083221HQ 083221: Tariff classification of lemon flavored syrup.Guidance
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 083221
February 6, 1990
CLA-2 CO:R:C:G 083221 LS
CATEGORY: Classification
TARIFF NO.: 2106.90.50
Robert W. Johnson, Esq.
McClure & Trotter
1100 Connecticut Avenue
Suite 600
Washington, D.C. 20036
RE: Tariff classification of lemon flavored syrup.
Dear Mr. Johnson:
This letter is in response to your letters, dated August
10, 1988, December 20, 1988, and April 10, 1989, requesting a
classification ruling, on behalf of your client, Coca-Cola
Company, regarding a flavored syrup.
FACTS:
The imported merchandise, known as lemon flavored syrup,
consists of a blend of approximately 45 percent concentrated
lemon juice and 55 percent refined cane sugar by dry weight.
After importation from Mexico in steel drums, the flavored syrup
will be further processed into a frozen concentrated lemonade by
the addition of lemon concentrate, high fructose corn syrup,
sucrose, natural lemon flavor and water. It will be sold at
retail in 6 ounce and 12 ounce containers and is formulated to be
further mixed by the consumer with water to prepare a finished
beverage.
In your first letter, dated August 10, 1988, you contend
that the lemon flavored syrup is properly classifiable under item
155.7540 and is not subject to the absolute quota restraints in
items 958.10 and 958.15, Tariff Schedules of the United States
Annotated (TSUSA). Since we are no longer issuing rulings on
prospective importations under the TSUSA, you resubmitted your
ruling request on December 20, 1988, and stated that the lemon
flavored syrup is properly classifiable under subheading
2106.90.60, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), which provides for "Food preparations not
elsewhere specified or included: Other: Other: Other: Other:
Other." The items covered by subheading 2106.90.60, HTSUSA, are
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not subject to quotas established pursuant to Section 22 of the
Agricultural Adjustment Act, as amended. In a subsequent letter,
dated April 10, 1989, you state your reasons for this position.
Subheading 2106.90.50, HTSUSA, provides for "Food preparations
not elsewhere specified or included: Other: Other: Other:
Other: Subject to quotas established pursuant to Section 22 of
the Agricultural Adjustment Act, as amended." Subheading
9904.60.60, HTSUSA is one of the quota provisions referred to in
the footnote to item 2106.90.50, HTSUSA. You contend that the
cross reference in subheading 9904.60.60, HTSUSA, to subheading
2106.90.50, HTSUSA, does not identify or describe any articles.
In order to classify the subject product under subheading
2106.90.50, HTSUSA, you contend that the subheading must include
specific article descriptions or must contain cross references to
the Presidential Proclamation that imposed the import
restrictions. You state that Presidential Proclamations 5294 and
5340, which concerned the imposition of Section 22 quotas in
subheadings 958.16, 958.17, and 958.18, TSUSA (the quota
provisions now found in subheadings 9904.60.20, 9904.60.40, and
9904.60.60, HTSUSA), are not directed at any articles classified
under item 155.75, TSUSA. (The subject flavored syrup was
classifiable in item 155.75 under the TSUSA.) Because no Section
22 quotas have been imposed since the HTSUSA replaced the TSUSA,
and the quotas established by Presidential Proclamation 5294, as
modified by Presidential Proclamation 5340, remain in force, you
contend that flavored syrups containing less than 65 percent by
dry weight of sugar cane or sugar beet are not affected by any
Section 22 quota. In a letter, dated April 28, 1989, you state
that the HTSUSA did not amend Section 22 of the Agricultural
Adjustment Act, but only incorporates for convenience the actions
taken by the President pursuant to his Section 22 authority.
ISSUE:
Whether the lemon flavored syrup is classifiable in
subheading 2106.90.50, HTSUSA, and subject to quota restraints in
subheading 9904.60.60, HTSUSA, or whether it is classifiable in
subheading 2106.90.60, HTSUSA, and therefore not subject to quota
restraints in subheading 9904.60.60, HTSUSA?
LAW AND ANALYSIS:
Classification of products under the HTSUSA is governed by
the General Rules of Interpretation (GRI's). GRI 1 provides that
classification is determined first in accordance with the terms
of the headings and any relative section or chapter notes.
The lemon flavored syrup is not classifiable in heading
1702 because that provision specifically states that it only
includes sugar syrups not containing added flavoring or coloring
matter. The Explanatory Note to heading 2106, which provides for
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"food preparations not elsewhere specified or included," states
that flavored syrups are classifiable in heading 2106. Flavored
syrups are more specifically classifiable in subheadings
2106.90.50 or 2106.90.60, HTSUSA, depending on whether they are
subject to quotas established pursuant to section 22 of the
Agricultural Adjustment Act, as amended. Subheading 2106.90.50,
HTSUSA, provides for food preparations not elsewhere specified or
included: Other: Other: Other: Other, which are subject to
the section 22 quotas. Footnote 2 to subheading 2106.90.50,
HTSUSA, refers to five quota provisions. Three of these
provisions (subheadings 9904.50.20, 9904.50.40, and 9904.60.60,
HTSUSA) cover sugar-containing products. Subheading 2106.90.60,
HTSUSA, provides for food preparations not elsewhere specified or
included: Other: Other: Other: Other: Other, which are not
subject to quota.
In order to determine whether the lemon flavored syrup is
classifiable in subheading 2106.90.50 or 2106.90.60, HTSUSA, we
must first establish whether it is subject to quota. The
flavored syrup is not covered by subheading 9904.50.20, HTSUSA,
which is the quota provision for blended syrups. As noted in
Headquarters Ruling Letter (HRL) 075049, which relied upon the
International Trade Commission's Report to the President on
Investigation No. 22-46 under section 22 of the Agricultural
Adjustment Act (ITC Publication 1462, December 1983), "the term
blended sirups includes all blends of sirups (two or more
sweeteners), whether or not flavored." Flavored syrups are
described in that report as being derived from a single sweetener
base. Customs has ruled that in order for a product to be
classified as a fruit syrup or flavored syrup it must contain
more than 50 percent sugar solids. See HRL 079343, dated
September 22, 1987. This position is based upon the Summary of
Trade and Tariff Information, Sugars and Other Sweeteners, USITC
Publication 841 (October 1984) at 43-44.
The lemon flavored syrup, which contains 55 percent cane
sugar by dry weight, is also not covered by quota subheading
9904.50.40, HTSUSA, which provides for articles containing over
65 percent by dry weight of sugars derived from sugar cane or
sugar beets.
The remaining applicable quota provision referred to in the
footnote to subheading 2106.90.50 is subheading 9904.60.60, which
provides for:
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
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amorphous form that are prepared for marketing to the
retail consumer in the identical form and package in which
imported, or (b) articles within the scope of subheadings
9904.50.20, 9904.50.40 or other import restrictions
provided for in this subchapter:
* * *
Provided for in subheading 1704.90.60, 1806.20.70
1806.20.80, 1806.90, 1901.90.80, 2101.10.40,
2101.20.40, 2103.90.60 or 2106.90.50, except
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 confec-
tions; finely ground or masticated coconut meat
or juice thereof mixed with those sugars; and
minced seafood preparations within the scope
of subheading 1604.20.05, 1605.10.05 or 1605.90.05
containing 20 percent or less by dry weight of those
sugars.
We find that the lemon flavored syrup is subject to quota
under subheading 9904.60.60, HTSUSA, for the following reasons:
(1) the subject syrup contains over 10 percent by dry weight of
sugars derived from sugar cane or sugar beets; and (2) the
subject syrup does not fall within any of the exceptions set
forth in subheading 9904.60.60, HTSUSA. Also, subheading
2106.90.50, HTSUSA, is one of the tariff provisions listed in
quota subheading 9904.60.60, HTSUSA. Therefore, the subject
merchandise is classifiable in subheading 2106.90.50, HTSUSA,
dutiable at the rate of 10 percent ad valorem.
We recognize that the lemon flavored syrup is subject to an
import quota restriction under the HTSUSA, whereas it was not
previously subject to such a restriction under the HTSUSA. This
change is a result of the conversion of import restrictions
proclaimed under section 22 of the Agricultural Adjustment Act
from Part 3 of the Appendix to the TSUSA to Subchapter IV of
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Chapter 99 of the HTSUSA. 1/ The Omnibus Trade and
Competitiveness Act of 1988, Public Law 100-418, specifically
provides in Section 1211(c)(1) that, where the conversion of a
Section 22 import restriction from the TSUSA to the HTSUSA
results in an article not previously subject to the restriction
being included within the restriction, "the President may
proclaim changes in subchapter IV of chapter 99 of the Harmonized
Tariff Schedule to conform that subchapter to the fullest extent
possible to part 3 of the Appendix to the old Schedules." Such
changes must be proclaimed before June 30, 1990. Since no
Presidential Proclamation has been issued which changes the
language of subheading 9904.60.60, HTSUSA, to exclude the subject
merchandise, we find that the merchandise is encompassed by
subheading 9904.60.60, HTSUSA, and is therefore subject to quota.
HOLDING:
For the foregoing reasons, the lemon flavored syrup is
classifiable in subheading 2106.90.50, HTSUSA, dutiable at the
rate of 10 percent ad valorem. It is subject to quota under
subheading 9904.60.60, HTSUSA. The current quota quantity for
subheading 9904.60.60, HTSUSA, is 76,203 metric tons in any 12
month period beginning October 1 in any year.
All prior rulings issued by Customs which are inconsistent
with this ruling are hereby revoked.
Sincerely,
John Durant, Director
Commercial Rulings Division
1/ Under the TSUSA, flavored syrups which contain over 10
percent, but less than 65 percent, by dry weight of sugars
derived from sugar cane or sugar beets were classifiable in item
155.75, TSUSA, which provides in part for "Sugars, sirups, and
molasses, described in this subpart, flavored." Since items
958.16, 958.17, and 958.18, TSUSA, which are the quota provisions
for articles containing over 10 percent by dry weight of sugars
derived from sugar cane or sugar beets, do not include a
reference to item 155.75, TSUSA, the instant lemon flavored syrup
was not subject to quota under the TSUSA. However, under the
HTSUSA the lemon flavored syrup is excluded from heading 1702
because that provision specifically states that it only includes
sugar syrups not containing added flavoring or coloring matter.
Since there is no other provision which specifically provides for
this merchandise, the syrup is classifiable under heading
2106.90. By virtue of the product's classification in a
provision under the HTSUSA (subheading 2106.90.50) which is
subject to quota, we are required to apply the quota.
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