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HQ 084641


September 1, 1989

CLA-2 CO:R:C:G 084641 SS

CATEGORY: CLASSIFICATION

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.

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,
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

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