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