Decision on Review of Protest No. 1401-90-000223, on the classification of sorbet

HQ 088668 April 12, 1991 CLA-2 CO:R:C:F 088668 RFC CATEGORY: Classification TARIFF NO.: 2105.00.0050 District Director U.S. Customs Service 101 East Main Street Norfolk, VA 23510 RE: Decision on Review of Protest No. 1401-90-000223, on the classification of sorbet Dear Sir: This is a decision on a review of a protest timely filed on behalf of Fancy Foods of Virginia, Inc., against your district's classification of sorbet. The sorbet was entered under entry number 2510009583-2 on July 6, 1990 and under entry number 2510009866-1 on August 13, 1990. Both entries were liquidated on November 2, 1990. FACTS: The product is identified and described as natural fruit sorbets in several flavors. ISSUE: What is the proper tariff classification under the HTSUSA of a sorbet? LAW AND ANALYSIS: Merchandise imported into the United States is classified under the HTSUSA. The tariff classification of merchandise under the HTSUSA is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUSA and are to be considered statutory provisions of law for all purposes. See Sections 1204(a) and 1204(c) of the Omnibus Trade and Competitiveness Act of 1988 (19 U.S.C. 1204(a) and 1204(c)). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff (i.e., (1) merchandise is to be classified under the four-digit heading that most specifically describes the merchandise; (2) only four-digit headings are comparable; and (3) merchandise must first satisfy the provisions of a four-digit heading before consideration is given to classification under a subheading within this four-digit heading) and any relative section or chapter notes and, provided such headings or notes do not otherwise require, than according to the other GRIs. GRI 6 prescribes that, for legal purposes, GRIs 1 to 5 shall govern, mutatis mutandis, classification at subheading levels within the same heading. Therefore, merchandise is to be classified at equal subheading levels (i.e., at the same digit level) within the same four-digit heading under the subheading that most specifically describes or identifies the merchandise. The Explanatory Notes to the Harmonized System represent the official interpretation of the Customs Cooperation Council on the scope of each heading. See H.R. Conf. Rep. No. 100-576, 100th Cong., 2d Sess. 549 (1988); 23 Customs Bulletin No. 36, 3 (T.D. 89-90, September 6, 1989), 59 F.R. 35127 (August 23, 1989). Although not binding on the contracting parties to the Harmonized System Convention or considered to be dispositive in the interpretation of the Harmonized System, the Explanatory Notes should be consulted on the proper scope of the Harmonized System. Id. A review of the chapters in the schedule reveals that the instant product may be potentially classified in chapter 21. This chapter covers "miscellaneous edible preparations." In chapter 21, the only headings under which the instant product may be potentially classified (and those that are in dispute in the protest) are headings 2105 and 2106. Heading 2105 provides for "ice cream and other edible ice, whether or not containing cocoa." Guidance concerning the scope of this heading can be found in the Explanatory Notes to heading 2105: This heading covers ice cream, which is usually prepared with a basis of milk or cream, and other edible ice (e.g., sherbet, iced lollipops), whether or not containing cocoa in any proportion. However, the heading excludes mixes and bases for ice cream which are classified according to their essential constituents (e.g., heading 18.06, 19.01 or 21.06). Under heading 2105, then, are classified edible-ice products of whatever type or kind. A sorbet is a fruit-flavor ice food product. See Webster`s Ninth New Collegiate Dictionary 1126 (1989). As the instant product is a sorbet, it is clearly covered by the terms of heading 2105 (i.e., edible ice). Therefore, the product is properly classified under this heading. The second heading under consideration is 2106. This heading provides for "food preparations not elsewhere specified or included" in the schedule. Classification under heading 2106 would only occur if the terms of no other heading in the schedule adequately describe the instant product. As discussed above, the terms of heading 2105 clearly describe this product. Therefore, heading 2106 is excluded from any consideration. HOLDING: The above-described product is properly classified under subheading 2105.00.0050, HTSUSA (1990), which provides for ice cream and other edible ice, whether or not containing cocoa, other, other. The general rate of duty is 20 percent ad valorem. This protest should be denied in full. A copy of this decision should be furnished to the protestant with the Form 19 notice of action. Sincerely, John Durant, Director