HQ 955580

May 26, 1994

CLA-2 CO:R:C:F 955580 ASM

CATEGORY: Classification

TARIFF NO.: 2106.90.6097

District Director

U.S. Customs Service

477 Michigan Avenue

Detroit, Michigan 48226

RE: Application for Further Review of Protest No. 3801-93-

101396, Tariff Classification of Rainbow Sprinkles.

Dear Sir:

This is a decision on a protest filed April 22, 1993,

against your decision in the classification of merchandise

liquidated on March 12, 1993.

FACTS:

The product that is the subject of this protest is known as

\"sprinkles.\" The merchandise is identified as \"rainbow

sprinkles, \" short, thin, round filaments in a variety of colors.

The ingredient composition of the sprinkles varies according to

customer specifications. In all cases, however, the principal

ingredients are icing sugar (from 68 to 85 percent) and

hydrogenated vegetable oil (7.5 to 13 percent). Other

ingredients that may be present include glucose, starch lecithin,

gum arabic, confectioner\'s shellac, and colors. This product was

imported in bulk and varying sizes of 40, 25, 10 and 7 pound

boxes, and entered under subheading 1704.90.2010, Harmonized

Tariff Schedule of the United States Annotated (HTSUSA), as sugar

confectionery for retail sale.

At liquidation, Customs reclassified the merchandise under

subheading 2106.90.6097 (currently 2106.90.6997), HTSUSA, as a

food preparation not elsewhere specified or included, containing

sugar derived from sugar cane and/or sugar beets.

The protestent seeks reclassification of the goods to

subheading 1704.90.2010, HTSUSA, as a \"Sugar confectionery

(including white chocolate), not containing cocoa: Other:

Confections or sweetmeats ready for consumption: Other: Other.\"

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ISSUE:

What is the proper classification under the HTSUSA of the

subject merchandise, rainbow sprinkles?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is made in

accordance with the General Rules of Interpretation (GRI\'s). As

stated in GRI 1, the classification is determined first in

accordance with the terms of the headings which must be read in

conjunction with the relative section and chapter notes. If GRI

1 fails to classify the goods and if the headings and legal notes

do not otherwise require, the remaining GRI\'s are applied in

their appropriate order. The Explanatory Notes to the Harmonized

Commodity Description and Coding System (EN\'s), facilitate

classification under the HTSUSA by offering guidance in

understanding the scope of the headings and GRI\'s.

The protestent has asserted that the product should be

classified in subheading 1704.90, HTSUSA, as a sugar

confectionery \"ready for consumption.\" In Leaf Brands Inc. v.

United States, 70 Cust. Ct. 66, CD 4409 (1973), the court stated:

\"it follows that a criterion for classification of an article as

a confectionery is its use (which may be evidenced by its manner

of sale) as a confection rather than its shape or texture.\" The

court further stated that the term confectionery \"applies to many

kinds of sweet tasting articles which are eaten as such for the

taste and flavor without further preparation and which are

usually sold in confectionery outlets.\"

The principles set forth in Leaf Brands , supra, have been

applied in a Headquarters ruling under the HTSUSA. Specifically,

Headquarters ruling 085206, dated February 23, 1990, stated

Customs\'s position that \"confections ready for consumption\" means

that \"a product, as it is marketed, and in its condition as

imported, must be ready for immediate consumption at retail as a

confectionery, and is not, for example, merchandise which will be

used as an ingredient in the baking industry.\"

The rainbow sprinkles now in question, are clearly an

ingredient used as a topping on various products, and in the

baking industry. Furthermore, the protestent has indicated that

the product is packed in bulk, for end use by bakers,

distributors and wholesalers. Thus, the rainbow sprinkles are

not products ready for immediate consumption at retail as a

confectionery, and cannot be classified under subheading 1704.90,

HTSUSA.

Inasmuch as this product is not covered by any other heading

of the Nomenclature, the proper classification of the rainbow

sprinkles is in subheading 2106.90.6097 (currently 2106.90.6997),

HTSUSA, as a food preparation not elsewhere specified or

included.

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HOLDING:

The protest should be denied. A copy of this decision

should be attached to the Form 19 to be returned to the

protestant.

The product, rainbow sprinkles, was properly classified in

1992 under subheading 2106.90.6097, HTSUSA, a provision for

\"Food preparations not elsewhere specified or included\" and

dutiable at 6 percent ad valorem as a product of Canada.

In accordance with Section 3A(11)(b) of Customs Directive

099 3550-065, dated August 4, 1993, Subject: Revised Protest

Directive, this decision should be mailed by your office to the

protestant no later than 60 days from the date of this letter.

Any reliquidation of the entry in accordance with the decision

must be accomplished prior to mailing this decision. Sixty days

from the date of the decision, the Office of Regulations and

Rulings will take steps to make the decision available to Customs

personnel via the Customs Rulings Module in ACS, and to the

public via the Diskette Subscription Service, the Freedom of

Information Act and other public access channels.

Sincerely,

John Durant, Director

Commercial Rulings Division