CLA-2 CO:R:C:G 084641 SS
Tariff NO. 2008.50.4000
            Mr. Steven P. Kersner
            Browstein, Zeidman and Schomer
            1401 New York Avenue
            Suite 900
            Washington, D.C.  20005-2102
            RE:  Request for Reconsideration of New York Ruling Letter
                 Dated April 17, 1989, Concerning the Classification of
                 Apricots
            Dear Mr. Kersner:
                 This is in response to your letter dated May 16, 1989, on
            behalf of Benper, S.A. de C.V., requesting a reconsideration of
            New York Ruling Letter (NYRL) 839437, dated April 27, 1989,
            concerning merchandise described as Chinese candy.
            FACTS:
                 The merchandise in issue is described as Chinese candy,
            which is stated to be dried, salted, sweetened and flavored
            apricots.  It is further stated that the end product consists
            of 89.5 percent apricot, 9 percent salt, 1 percent sugar, and
            0.5 percent citric acid.
                 In a submission dated August 29, 1989, counsel provided a
            sample consisting of a small plastic packet containing two
            pieces of the Chinese candy in issue.  The product resembled
            pits, was extremely hard, and very salty to the taste.  The
            labeling on the packet described the merchandise as a product
            of Mexico, and consisting of apricot, salt, and sodium sorbate
            as a preservative.
                 In NYRL 839437, Customs classified this product under
            subheading 2008.50.40, HTSUS, which provides for
            fruit...otherwise prepared or preserved...not elsewhere
            specified or included...apricots...other.
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                 Counsel disputes this classification and claims that the
            subject merchandise is properly classifiable as a confectionery
            under subheading 1704.90.20, HTSUS.
            ISSUE:
                 Whether the subject merchandise is properly classifiable
            under subheading 2008.50.40, HTSUS, which provides for
            fruit...otherwise prepared or preserved...not elsewhere
            specified or included...apricots...other, or under subheading
            1704.90.20, HTSUS, which provides for confectionery.
            LAW AND ANALYSIS:
                 The subject merchandise is described as Chinese candy, and
            is stated to consist essentially of apricots which have been
            dried, salted, and to which a small amount of sugar, namely one
            percent, and citric acid have been added.  However, the
            labeling on the packet does not mention sugar as an ingredient
            of the subject product, and further, the overriding salty taste
            of the product completely masks any sugar which might be
            present.
                 Counsel claims that the merchandise in issue is properly
            classifiable under subheading 1798.90.20, HTSUS.  Counsel cites
            several court cases decided under the Tariff Schedules of the
            United States (TSUS) in support of this claim.
                 However, while court cases decided under the TSUS may
            offer some guidance in determining classification under the
            HTSUS, such cases are not dispositive on classification issues
            under the HTSUS.
                 Rather, classification under the HTSUS 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.
                 Heading 1704 HTSUS, provides for sugar confectionery
            (including white chocolate), not containing cocoa.  The
            Explanatory Notes to the HTSUS, which should be consulted for
            guidance in interpretations of the provisions of the HTSUS,
            state that 1704 HTSUS covers most of the sugar preparations
            which are marketed in solid or semi-solid form, generally
            suitable for immediate consumption and collectively referred to
            as sweetmeats, confectionery or candies.  Some of the examples
            listed under this heading include boiled sweets, marzipan,
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            preparations put up as throat pastilles or cough drops,
            liquorice extract...containing more than 10 percent by weight
            of sucrose, etc.  Ostensibly, none of these examples remotely
            describe the subject merchandise.
                 Subheading 0813.10.0000, HTSUS provides for dried
            apricots.  However, the General Notes of the Explanatory Notes
            to chapter 8 provide that the fruits of this chapter may be
            fresh...or dried (including dehydrated, evaporated or freeze-
            dried); provided they are unsuitable for immediate consumption
            in that state, they may be provisionally preserved....
                 In the instant case, the preparation, including the
            preservative and the significant amount of salt, of the subject
            merchandise exceeds the scope permitted in chapter 8, thus
            precluding classification under this chapter.
                 Subheading 2008.50.4000, HTSUS, provides for
            fruit...otherwise prepared or preserved...apricots...other than
            pulp.  The subject merchandise consists of apricots other than
            pulp, otherwise preserved or prepared, and accordingly, is
            properly classifiable under this subheading.
            HOLDING:
                 The merchandise in issue, described as Chinese candy, is
            properly classifiable under subheading 2008.50.4000, HTSUS,
            dutiable at a rate of 35 percent ad valorem.
                 New York Ruling Letter 839437, dated April 27, 1989 is
            hereby affirmed.
                                        Sincerely,
John Durant, Director
                                        Commercial Rulings Division
singh library 084641
            6cc:  Area Director, New York
            SSingh:jaj:8/31/89