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

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