HQ 083999: Reconsideration of I.A. 32/87, classification of fruit spreads from Denmark

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 083999

                                     June 28,1989


            CLA-2 CO:R:C:G 083999  JGH

            CATEGORY:  Classification

            TARIFF NO: 146.24, TSUS - 2007.99.15, HTSUS

            District Director of Customs
            2039 Federal Office Building
            909 First Avenue
            Seattle, Washington  98174

            RE:  Reconsideration of I.A. 32/87, classification of fruit
                 spreads from Denmark

            Dear Sir:

                 This is a reconsideration of Internal Advice 32/87
            (081382), decided December 1, 1988, on the classification of
            fruit spreads under the Tariff Schedules of the United States
            (TSUS) and the Harmonized Tariff Schedule of the United States
            (HTSUS).

            FACTS:

                 The spreads were said to consist of 40 percent fruit, 28
            percent sugar and 25 percent glucose syrup.  The mixture was
            said to be cooked until thickened.

                 On reconsideration, the fruit samples submitted were
            blackberry, raspberry, strawberry, peach, black cherry,
            boysenberry, apricot and blueberry.

            ISSUE:

                 Whether under the TSUS the fruit spreads are classifiable
            as jams in items 153.03 to 153.32, TSUS, or as prepared and
            preserved fruit in items 146.24 to 150.05, TSUS.

                 Under the HTSUS the question is whether the products are
            classifiable as jams in the various subheadings under heading
            2007, HTSUS, or as prepared or preserved fruit in the specific
            subheadings under heading 2008, HTSUS.

















                                         - 2 -

            LAW AND ANALYSIS:

                 Under the TSUS, in the Summaries of Trade and Tariff
            Information, Schedule 1, Volume 8, a jam is defined as fruit
            and sugar boiled to a thick consistency, without preserving the
            shape of the fruit.  As a result, products which contain whole
            or recognizable pieces of fruit would be classifiable as
            prepared or preserved edible fruits.

                 In examining the samples submitted on reconsideration,
            particular care was taken with each sampling to note the
            representative amount and the configuration of the whole fruit
            or pieces of fruit present in order to ascertain whether or not
            they were of a size and consistency to be readily recognizable
            as the fruit claimed.

                 Under the HTSUS, the Explanatory Notes constitute the
            official interpretation of the various provisions of the HTSUS
            on the international level.  The Explanatory Notes to heading
            2007 state that jams are made by boiling whole fruit or fruit
            pulp with sugar in approximately equal proportions.  When cool
            they are of moderately firm consistency and contain pieces of
            fruit.  Thus the test of identifiable whole fruit or pieces of
            fruit in the mixture to distinguish jams from preserves is not
            followed under the HTSUS.  In this case the question is whether
            the fruit-sugar content is in approximately equal proportions.
            It is now contended that in determining the amount of sugar in
            the mixture, it is not the total amount of glucose syrup
            present but the sugar solids in the syrup which is measured.
            This is based on the FDA standard which states that the weight
            of any optional saccharine (sweetener) ingredient means the
            weight of the solids of such ingredient.  21 CFR 150.160(d)(4).
            The product is made up of 40 parts fruit, 28 parts sucrose, and
            25 parts glucose syrup with 83 degrees Brix.  Or expressed
            another way:  25 x 0.83 = 20.75 parts glucose solids.  Thus,
            the fruit and sweeteners total 88.75 parts of the total
            mixture.  Therefore, 40/88.75 = 46.6 parts fruit, and, as to
            the sugar content, 48.75/88.75 = 53.4 parts total sugar.
            Accordingly, the difference between the fruit and sweeteners
            content would be within 10 percent allowance considered
            "approximately equal proportions."





















                                         - 3 -

            HOLDING:

                 As a result of the above, under the HTSUS the fruit spread
            samples would be classifiable as jams as follows:

                 Product                        HTSUS Subheading

                 Blackberry                      2007.99.15
                 Blueberry                       2007.99.15
                 Raspberry                       2007.99.05
                 Strawberry                      2007.99.10
                 Peach                           2007.99.35
                 Black Cherry                    2007.99.25
                 Apricot                         2007.99.20
                 Boysenberry                     2007.99.15

                 On the basis of such sampling under the TSUS the
            blackberry, black cherry, and blueberry fruit spreads would be
            classifiable as prepared or preserved edible fruits.  The
            classification under the TSUS of the samples submitted would be
            as follows:

                 Fruit Spread                      TSUS Item

                 Raspberry                          153.07
                 Strawberry                         153.03
                 Peach                              153.32
                 Boysenberry                        153.07
                 Apricot                            153.32
                 Blackberry                         146.86
                 Black Cherry                       146.99
                 Blueberry                          146.79

                                        Sincerely,




                                        Harvey B. Fox, Director
                                        Office of Regulations and Rulings
















            hurley library 083999
            6cc:  Area Director, New York Seaport
            2cc:  Chief, CIE
            1cc:  Regional Commissioner, Seattle
            JGHurley:jaj:6/26/89