H333793

HQ H333793 March 12, 2024 OT:RR:CTF:FTM H333793 MJD CATEGORY: Classification; Origin TARIFF NO.: 1704.90.35 Mr. Yunming Gu Wismettac Asian Foods, Inc. 13409 Orden Dr. Santa Fe Springs, California 90670-6336 RE: Tariff Classification and Country of Origin of Strawberry Mochi Dear Mr. Gu, This is in response to your request, dated July 5, 2023, on behalf of Wismettac Asian Foods, Inc., for a binding ruling regarding the tariff classification and country of origin of strawberry mochi under the Harmonized Tariff Schedule of the United States (“HTSUS”). The request was forwarded to this office by the National Commodity Specialist Division for a response. Our ruling is set forth below. Within the request for a binding ruling, the requestor asked that the percentages of ingredients in connection with this request be treated as confidential. Inasmuch as this request conforms to the requirements of 19 C.F.R. § 177.2(b)(7), the request for confidentiality is approved. The information contained within brackets in this decision will not be released to the public and will be withheld from published versions of this decision. FACTS: The subject merchandise is “strawberry mochi,” which is round in shape and strawberry pink in color. The strawberry mochi contains the following ingredients: Percentage of Ingredient: Ingredient: Country of Origin of Ingredient:  [***] Maltose Taiwan  [***] Sugar Thailand  [***] Glutinous Rice Thailand  [***] Hydroxypropyl Distarch Phosphate (E1442) Thailand  [***] Palm oil Malaysia  [***] Wax Gourd Taiwan  [***] Strawberry Juice Taiwan  [***] Trehalose China  [***] Gelatin Brazil  [***] Strawberry Flavor Taiwan  [***] Sorbitol (E420) (Sweetener) Taiwan  [***] FD&C Red No. 40 (E129) Denmark  [***] Monoglycerides and Diglycerides (E471) (Emulsifier) Japan  [***] Potassium Sorbate (E202) (Preservative) Germany   In Taiwan, the raw materials, i.e., maltose, sugar, glutinous rice, hydroxypropyl distarch phosphate (E1442), palm oil, wax gourd, and strawberry juice are stored at 35 degrees Celsius after undergoing quality control. Then they are weighed, steamed at 112 degrees Celsius, mixed, and stirred. Afterwards, the various additives, i.e., trehalose, gelatin, strawberry flavor, sorbitol (E420) (sweetener), FD&C Red No. 40 (E129), monoglycerides and diglycerides (E471) (emulsifier), and potassium sorbate (E202) (preservative) are prepared and added to the mixture. The mixture is shaped into round balls and becomes the final product. One individual bag contains 8 strawberry mochis and has a net weight of 216 g. Each outer box has 12 individual bags and a total gross weight of 3.2 kg. The strawberry mochi is exported from Taiwan in an ambient state and sold mainly in bulk to Asian supermarkets and restaurants. According to the requestor, the strawberry mochi is intended to be consumed as a snack or sweet and is sold in the dessert section of stores alongside other confectioneries. ISSUE: (1) What is the tariff classification of the strawberry mochi? (2) What is the country of origin of the strawberry mochi? LAW AND ANALYSIS: Classification Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods 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 2024 HTSUS provision under consideration are as follows: 1704: Sugar confectionery (including white chocolate), not containing cocoa: 1704.90: Other: Confections or sweetmeats ready for consumption: Other: 1704.90.35 Other * * * The Harmonized Commodity Description and Coding System Explanatory Notes (“EN”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of [the] proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). EN 17.04 provides, in relevant part, that: This heading covers most of the sugar preparations which are marketed in a solid or semisolid form, generally suitable for immediate consumption and collectively referred to as sweetmeats, confectionery or candies. * * * The product at issue is strawberry mochi. The strawberry mochi is made from steaming and mixing maltose, sugar, glutinous rice, hydroxypropyl distarch phosphate (E1442), palm oil, wax gourd, and strawberry juice. Then various additives such as trehalose, gelatin, strawberry flavor, sorbitol (E420) (sweetener), FD&C red no. 40 (E129), monoglycerides and diglycerides (E471) (emulsifier), and potassium sorbate (E202) (preservative) are prepared and added to the mixture. The mixture is shaped into round balls and becomes the final product. The strawberry mochi is imported in an ambient state and sold mainly in bulk to Asian supermarkets and restaurants. It is intended to be consumed as a snack or sweet and sold in the dessert section of stores alongside other confectioneries. CBP has previously classified similar products to the strawberry mochi in heading 1704, HTSUS, which provides for “Sugar confectionery (including white chocolate), not containing cocoa.” The ENs to heading 1704, HTSUS, provide that “[this] heading covers most of the sugar preparations which are marketed in a solid or semi solid form, generally suitable for immediate consumption and collectively referred to as sweetmeats, confectionery or candies.” For example, in Headquarters Ruling Letter (“HQ”) H200575, dated April 16, 2012, CBP classified Kellogg’s Rice Krispies Treats® in heading 1704, HTSUS. The Kellogg’s Rice Krispies Treats® contained “approximately 35% of medium grained milled rice and a combined sugar content over 50%, which includes corn syrup, fructose, fine granulated sugar, corn syrup solids, dextrose and high fructose corn syrup.” In classifying the product in heading 1704, HTSUS, CBP established that the Kellogg’s Rice Krispies Treats® were a sugar confectionary stating that “CBP has consistently taken the position that a confection is a product that, in its condition as imported, is ready for consumption at retail as a confectionery, is marketed as such, and is not an ingredient of another food.” See HQ H2500575 (citing to HQ 086101, dated February 27, 1990 (peanut flavored chips); HQ 085206, dated February 23, 1990 (white chocolate in 5 kg blocks); HQ 955580, dated July 30, 2002 and HQ 965211, dated August 1, 2002 (chocolate fish); HQ H027857, dated August 8, 2008 (small marshmallows); and HQ H047555, dated March 19, 2010 (goat milk caramel lollipop)). As a result, CBP provided that “the Rice Krispies Treats are sweet-tasting articles eaten for their sweetness, composed mostly of sugar, are ready for consumption, are viewed by Kellogg as a confectionery, and are marketed and sold as snacks, the Treats belong to the class or kind of goods that are considered confectioneries.” Likewise, in HQ 963764, dated January 11, 2002, CBP classified Certs® Cool Mint Drops in heading 1704, HTSUS. In making that determination, CBP stated that the Certs® Cool Mint Drops were “marketed as mints,” explaining that “[m]ints are confectioneries” and that they are “sold with other candies at newspaper stands, pharmacies and supermarkets.” Moreover, CBP emphasized that the Certs® Cool Mint Drops consist essentially of sugar. Like the Kellogg’s Rice Krispies Treats® in H200575 and the Certs® Cool Mint Drops in in HQ 963764, the strawberry mochi in this case is composed mostly of sugar. Sugar is the greatest ingredient overall, with the glutinous rice coming in second. In fact, the amount of sugar in the s

Classification Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”).  GRI 1 provides that the classification of goods 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 2024 HTSUS provision under consideration are as follows:1704: Sugar confectionery (including white chocolate), not containing cocoa:1704.90: Other: Confections or sweetmeats ready for consumption: Other:1704.90.35 Other* * * The Harmonized Commodity Description and Coding System Explanatory Notes (“EN”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of [the] proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). EN 17.04 provides, in relevant part, that: This heading covers most of the sugar preparations which are marketed in a solid or semisolid form, generally suitable for immediate consumption and collectively referred to as sweetmeats, confectionery or candies.* * * The product at issue is strawberry mochi. The strawberry mochi is made from steaming and mixing maltose, sugar, glutinous rice, hydroxypropyl distarch phosphate (E1442), palm oil, wax gourd, and strawberry juice. Then various additives such as trehalose, gelatin, strawberry flavor, sorbitol (E420) (sweetener), FD&C red no. 40 (E129), monoglycerides and diglycerides (E471) (emulsifier), and potassium sorbate (E202) (preservative) are prepared and added to the mixture. The mixture is shaped into round balls and becomes the final product. The strawberry mochi is imported in an am