Classification of dry powdered food preparation

HQ 088824 July 30, 1991 CLA-2 CO:R:C:F 088824 EAB CATEGORY: Classification TARIFF NO.: 2106.90.6099 Leonard M. Fertman, Esquire 2049 Century Park East, Suite 1800 Los Angeles, CA 90067 Re: Classification of dry powdered food preparation Dear Mr. Fertman: This is in reply to your February 26, 1991 letter on behalf of Consolidated Flavor Corporation, in which you request a binding ruling on the tariff classification of a dry powdered food preparation under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample of the product was submitted. FACTS: The product is to be used as a food additive, no particulars having been given. It is a dry, white, powdered mixture composed of 50 percent cornstarch, 48 percent carrageenan (an extract of red algae, principally Irish moss, used as a suspending agent, clarifying agent or stabilizer in foods or beverages) and 2 per- cent salt. The sample "is a prototype mixture and the amount of carrageenan in the actual mixture will be increased while the amount of starch is decreased," p. 1 of the submission. ISSUE: What is the proper tariff classification under the HTSUSA of a food preparation that is a mixture of vegetable products? LAW AND ANALYSIS: Merchandise imported into the U.S. is classified under the HTSUSA. The tariff classification of merchandise under the HTSUSA is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUSA and are to be considered statutory provisions of law for all purposes. See Sections 1204(a) and (c) of the Omnibus Trade and Competitive Act of 1988 (19 U.S.C. 1204(a) & (c)). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule (i.e., (1) merchandise is to be classified under the 4-digit heading that most specifically describes the merchandise; (2) only 4-digit headings are comparable; and (3) merchandise must first satisfy the provisions of a 4-digit heading before consideration is given to classification under a subheading within this 4-digit heading) and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's taken in order. You are of the opinion that the subject food preparation should be classified under either subheading 1212.99 or 1404.90, HTSUSA. We disagree. Heading 1212 of the schedule provides for vegetable products of a kind used primarily for human consumption, not elsewhere specified. As stated in Explanatory Note 12.12(B)(a), the heading excludes carrageenan. Heading 1404 provides for vegetable products not elsewhere specified or included, and also excludes carrageenan. Explanatory Note 14.04(D)(5). Heading 1901, HTSUSA, provides for human food preparations, including intermediate preparations for the food industry, deriving their essential character from starch, whether or not predominating by weight or volume. Since the amount of starch in the submitted prototype will be decreased and the amount of carrageenan will be increased, clearly the mixture does not derive its essential character from the amount of starch, either by weight or volume. We agree that the subject preparation is not properly classifiable under heading 1901, pp.2-3, submission. Based upon the limited information provided regarding the use/s to which it will be put, we are of the opinion that the subject food preparation it is properly classifiable according to GRI 1 under heading 2106, HTSUSA, covering "Preparations consisting wholly or partly of foodstuffs, used in the making of beverages or food preparations for human consumption," as provided in part, Explanatory Note 21.06(B). More specifically, we find that the subject food preparation is properly classifiable under subheading 2106.90.6099, HTSUSA. HOLDING: Dry, powdered food preparation consisting of a mixture of corn starch, carrageenan and salt, to be used as an ingredient in foods for human consumption, is properly classifiable under subheading 2106.90.6099, HTSUSA, which provides for "food preparations not elsewhere specified or included: other: other: other: other: other: other," dutiable under the general column 1 rate of 10 percent ad valorem. Sincerely, John Durant, Director Commercial Rulings Division