H320969

HQ H320969 November 17, 2021 OT:RR:CTF:FTM H320969 TSM CATEGORY: Classification; Origin TARIFF NO.: 1701.91.4800 Mr. Anthony Parlatore Redpath Sugar Ltd. 95 Queen’s Quay East Toronto, ON M5E 1A3 Canada Re: Tariff classification, country of origin marking, and eligibility for preferential tariff treatment under the United States-Mexico-Canada Agreement (“USMCA”) of certain sugar/vanillin blends Dear Mr. Parlatore: This is in response to your letter, dated September 2, 2021, in which you requested a ruling, on behalf of Redpath Sugar Ltd., regarding the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”), country of origin, and preferential tariff treatment under the United States-Mexico-Canada Agreement (“USMCA”) of certain sugar/vanillin blends. Your request was forwarded to this office from the National Commodity Specialist Division for review. FACTS: The subject merchandise consists of five products, which are described as sugar and vanillin blends containing a mixture of raw cane sugar and artificial vanillin powder. Product 1 consists of 99.99 percent sugar (Product of Brazil) and 0.01 percent vanillin powder (Product of USA). Product 2 consists of 99.95 percent sugar (Product of Brazil) and 0.05 percent vanillin powder (Product of USA). Product 3 consists of 99.9 percent sugar (Product of Brazil) and 0.1 percent vanillin powder (Product of USA). Product 4 consists of 99.95 percent sugar (Product of Guatemala) and 0.05 percent vanillin powder (Product of USA). Product 5 consists of 99 percent sugar (Product of Costa Rica) and 1 percent vanillin powder (Product of USA). The raw cane sugar, produced in Brazil, Guatemala, or Costa Rica, is refined in Canada. The vanillin powder is produced in the United States. The refined sugar and vanillin powder are blended in Canada and shipped to the United States in 2200-pound supersacks. The sugar and vanillin products will be further mixed with other ingredients in the United States in manufacture of confectionery products. ISSUE: What is the tariff classification, country of origin marking, and status under the USMCA of the sugar/vanillin products at issue? LAW AND ANALYSIS: 1. Tariff Classification Classification under the HTSUS is determined 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 2021 HTSUS provisions under consideration are as follows: 1701 Cane or beet sugar and chemically pure sucrose, in solid form: Other: 1701.91 Containing added flavoring or coloring matter: Containing added flavoring matter whether or not containing added coloring: Articles containing over 65 percent by dry weight of sugar described in additional U.S. note 2 to Chapter 17: * * * 1701.91.48 Other Additional U.S. Note 2 to Section IV, HTSUS, provides as follows: For the purposes of this section, unless the context otherwise requires— the term “percent by dry weight” means the sugar content as a percentage of the total solids in the product; 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 term “prepared for marketing to the ultimate consumer in the identical form and package in which imported” means that the product is imported in packaging of such sizes and labeling as to be readily identifiable as being intended for retail sale to the ultimate consumer without any alteration in the form of the product or its packaging; and the term “ultimate consumer” does not include institutions such as hospitals, prisons and military establishments or food service establishments such as restaurants, hotels, bars or bakeries. 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. In addition, the Explanatory Notes (“EN”) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff 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 17.01 states in pertinent part the following: It should be noted that cane and beet sugar fall in this heading only when in the solid form (including powders); such sugar may contain added flavouring or colouring matter. * * * The five sugar/vanillin products at issue contain between 99 percent and 99.99 percent cane sugar and between 0.1 percent and 1 percent vanillin powder. Cane sugar is classified under heading 1701, HTSUS, which provides in relevant part for “Cane or beet sugar …, in solid form.” Moreover, consistent with EN 17.01, cane sugar containing “added flavouring or colouring matter” is also classified under heading 1701, HTSUS. Accordingly, we find that the products at issue, consisting of cane sugar and vanillin, which is a flavouring matter (component), are described by subheading 1701.91, HTSUS. Additional U.S. Note 2 to Chapter 17, HTSUS, covers articles that: (a) contain over 65 percent by dry weight of sugars derived from sugar cane or sugar beets, whether or not mixed with other ingredients; (b) capable of being further processed or mixed with similar or other ingredients, and (c) not prepared for marketing to the ultimate consumer in the identical form and package in which imported. Additional U.S. Note 2 to Section IV, HTSUS, defines the terms “percent by dry weight,” “capable of being further processed or mixed with similar or other ingredients,” and “prepared for marketing to the ultimate consumer in the identical form and package in which imported.” Specifically, Additional U.S. Note 2 to Section IV, HTSUS, provides as follows: (a) the term “percent by dry weight” means the sugar content as a percentage of the total solids in the product; (b) 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; and (c) the term “prepared for marketing to the ultimate consumer in the identical form and package in which imported” means that the product is imported in packaging of such sizes and labeling as to be readily identifiable as being intended for retail sale to the ultimate consumer without any alteration in the form of the product or its packaging. Upon review, we find that the five sugar/vanillin products at issue are described by Additional Note 2 to Chapter 17, HTSUS, based on the following: (a) they

1. Tariff Classification Classification under the HTSUS is determined 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 2021 HTSUS provisions under consideration are as follows:1701 Cane or beet sugar and chemically pure sucrose, in solid form: Other:1701.91 Containing added flavoring or coloring matter:Containing added flavoring matter whether or not containing added coloring:Articles containing over 65 percent by dry weight of sugar described in additional U.S. note 2 to Chapter 17:* * *1701.91.48 Other Additional U.S. Note 2 to Section IV, HTSUS, provides as follows: For the purposes of this section, unless the context otherwise requires— the term “percent by dry weight” means the sugar content as a percentage of the total solids in the product;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 term “prepared for marketing to the ultimate consumer in the identical form and package in which imported” means that the product is imported in packaging of such sizes and labeling as to be readily identifiable as being intended for retail sale to the ultimate consumer without any alteration in the form of the product or its packaging; andthe term “ultimate consumer” does not include i