HQ 080031: Decision on Application for Further Review of Protest No. 1101-6-000208, Classification of Fruit and Berry Preserves from France

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                       HQ 080031

                                  September 30, 1988

            CLA-2 CO:R:C:G  080031 JGH

            CATEGORY:  Classification

            TARIFF NO.:  146.24; 146.99; 148.78; 149.28; 153.07;
                         153.03

            District Director of Customs
            Second and Chestnut Streets
            Philadelphia, Pennsylvania 19106

            RE:  Decision on Application for Further Review of Protest
                 No. 1101-6-000208, Classification of Fruit and Berry
                 Preserves from France

            Dear Sir:

                 This is decision on an application for further review of
            a protest involving the classification of fruit and berry
            preserves from France.

            FACTS:

                 The imported products consist of seven varieties of fruit
            preserves:  black cherry, red raspberry, black raspberry,
            plum, blueberry, peach, strawberry, and apricot.  Customs
            classified the products under the provision for fruits and
            berries, prepared or preserved:  black cherry in item 146.99;
            raspberry in item 146.84; plum in item 149.28; blueberry in
            item 146.79; peach in item 148.78; strawberry in item 146.85;
            and apricot in item 146.24.  The protestant claims that these
            products are classifiable as other berry jams in items 153.03
            and 153.07, TSUS, if they are berry products, and if fruits,
            under the provision for other jams in item 153.32, TSUS.

            ISSUE:

                 The issue is whether the imported products are
            classifiable as prepared and preserved products or jams.

            LAW AND ANALYSIS:

                 The protestant claims that the products are made by
            boiling whole fruit or pieces of fruit with sugar, lemon juice
            and Chambord liqueur.  The resultant product is to be a thick
            jam with no recognizable pieces of fruit.














                                         - 2 -

                 Encyclopedia and dictionary definitions of jams are
            cited, to show that jam results from boiling the fruit with
            sugar, with the fruit being crushed and cooked, together with
            the fruit juice and pulp.  Another definition stated that the
            fruit and sugar are cooked to a thick consistency, without
            preserving the shape of the fruit.

                 Furthermore, the protestant points out that the
            classification of identical merchandise at various ports has
            not been consistent.  One port's jams were another's
            preserves.  To a certain extent, of course, this results from
            the individual examination of the product in the light of the
            rather subjective tariff definitions to be applied.  However,
            inquiries to the various ports found no records of samples
            having been submitted for examination.

                 In the Summaries of Trade and Tariff Information,
            Schedule 1, Vol. 8, TC Publication 269 (1969) it is noted that
            a distinction is made between fruit processed and packed in a
            manner which substantially retains the shape of the fruit,
            which is classified under the provision for "prepared or
            preserved fruit," and a jam which is described as a product
            made by boiling fruit and sugar to a thick consistency without
            preserving the shape of the fruit.

                 The court in Julius Goldfarb v. United States, 55 Cust.
            Ct. 120, stated that jam was a fruit preserve which is crushed
            or reduced to a pulp; a conserve of fruit prepared by cooking
            and stewing with sugar, reducing it to a pulp.  In that case
            the court found that the berries retained their shape and were
            not reduced to a pulp, so that they were edible berries,
            prepared and preserved.

                 As stated before, as the examination of the fruit and
            berry products under the tariff definition of jams and
            preserves is a subjective one, and in view of the conflicting
            opinions drawn at various ports on the identity of these
            imports, samples of the various products were requested in
            connection with the appeal.  Samples were submitted of black
            cherry, strawberry, peach, black raspberry, plum, blueberry,
            red raspberry, and apricot.  Based on examination of samples,
            during which it was found that there were recognizable pieces
            of fruit in some of the samples, the following products would
            be classified as prepared or preserved fruits:

                    Samples                  TSUS Item

                 Black Cherry                 146.99
                 Peach                        148.78
                 Plum                         149.28
                 Apricot                      146.24











                                         - 3 -

                 The following products would be classifiable as jams
            since no recognizable whole fruits or pieces were found:

                 Strawberry                   153.03
                 Blueberry                    153.07
                 Red Raspberry                153.07
                 Black Raspberry              153.07

            HOLDING:

                 The protest should be denied to the extent indicated, and
            allowed to the extent indicated.

                 A copy of this decision should be furnished the
            protestant along with the Form 19 Notice of Action.

                                        Sincerely,




                                        John Durant, Director
                                        Commercial Rulings Division