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HQ 950476


January 15,1992

CLA-2 CO:R:C:F 950476 JGH

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.5050

William J. Maloney, Esq
Rode & Qualey
295 Madison Ave.
New York, N.Y. 10017

RE: Classification of a blueberry preparation used in a yogurt product under the Harmonized Tariff Schedule of the United States (HTSUS).

Dear Mr. Maloney:

Your letter of August 28, 1991, concerns the tariff classification of a blueberry preparation made in Canada.

FACTS:

The product is said to consist of 17 percent blueberries, 53.5 percent sugar, 15.7 percent water, 8 percent corn syrup, 3 percent blueberry flavor, 2.5 percent starch, and less than one percent each of citric acid, sorbic acid, and colorings. It will be imported in 500 pound drums and used in the manufacture of fruit flavored yogurt. A sample was described as being a dark blue, thick syrup, containing scattered whole and broken blueberries. In the manufacturing of the product, it is stated that starch is added to maintain viscosity standards in the finished product.

ISSUE:

Whether the blueberry preparation is classifiable under the provision for fruits, otherwise prepared and preserved, whether or not containing added sugar or other sweetening matter: Blueberries, or other food preparations in subheading 2106.90.5050, HTSUS.

LAW AND ANALYSIS:

You state that the blueberry preparation is not classifiable in Chapter 8, HTSUS, as it has been pasteurized and prepared or preserved otherwise than provided for in that chapter. As it is said to derive its essential form, appearance, taste and character from the fruit, your position is that it is a sweetened fruit preparation with the contemplation of subheading 2008.99.18, as prepared or preserved blueberries.

However, in view of the product's low fruit content and viscous nature, it is more like a flavored syrup than a prepared or preserved fruit. This product is not similar to those which have a fruit content of 45 to 50 percent fruit. While its high content of sweeteners and free-flowing consistency give it a syrupy appearance, the presence of large fruit pieces and starch make it more of a food preparation.

HOLDING:

The blueberry preparation in issue used in a yogurt product is classifiable under the provision for other food preparations not elsewhere specified or included, in subheading 2106.90.5050, HTSUS. The rate of duty for Canadian products is 6 percent ad valorem. In addition it is subject to the quota restraints in subheading 9904.60.60, HTSUS, for articles containing over 10 percent sugar.

Sincerely,

John Durant, Director

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