Internal advice; the tariff classification of tropical fruit cocktail.

February 28, 2017 HQ H273378 CLA-2 OT:RR:CTF:TCM H273378 TSM CATEGORY: Classification TARIFF NO.: 2008.97.10 Port Director Port of San Francisco U.S. Customs and Border Protection 555 Battery Street San Francisco, CA 94111 Attn: John Butcher, Import Specialist RE: Internal advice; the tariff classification of tropical fruit cocktail. Dear Port Director: This is in response to your Request for Internal Advice, dated November 9, 2015, initiated by Simco Foods (“Simco”), concerning the proper classification of tropical fruit cocktail under the Harmonized Tariff Schedule of the United States (“HTSUS”). FACTS: The tropical fruit cocktail at issue consists of the following ingredients: 45% pineapples, 45% red and yellow papaya and 10% guava in light syrup. The product label reads “Tropical Fruit Salad in light syrup.” The product is packaged in airtight cans. On September 19, 2014, the tropical fruit cocktail at issue was entered and subsequently liquidated under subheading 2008.97.90, HTSUS, which provides for “Fruit, Nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Mixtures: Other.” The post-entry amendment was subsequently filed by Simco, requesting reclassification of the tropical fruit cocktail at issue under subheading 2008.97.10, HTSUS, which provides for “Fruit, Nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Mixtures: In airtight containers and not containing apricots, citrus fruits, peaches or pears.” ISSUE: Whether the tropical fruit cocktail at issue is classified in subheading 2008.97.10, HTSUS, as “Fruit …: Mixtures: In airtight containers and not containing apricots, citrus fruits, peaches or pears,” or in subheading 2008.97.90, HTSUS, as “Fruit…: Mixtures: Other.” LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs).  GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes.  In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.  The HTSUS provisions under consideration are as follows: 2008 Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: * * * 2008.97 Mixtures: 2008.97.10 In airtight containers and not containing apricots, citrus fruits, peaches or pears * * * 2008.97.90 Other * * * In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). EN to heading 2008 provides, in pertinent part, the following: This heading covers fruit, nuts and other edible parts of plants, whether whole, in pieces or crushed, including mixtures thereof, prepared or preserved otherwise than by any of the processes specified in other Chapters or in the preceding headings of this Chapter.   It includes, inter alia:   * * *   (3)   Fruit (including fruitpeel and seeds) preserved in water, in syrup, in chemicals or in alcohol.   * * * Consistent with the above-referenced ENs to heading 2008, this heading covers fruit, whether whole, in pieces or crushed, including mixtures thereof, prepared or preserved in water, in syrup, in chemicals or in alcohol. Subheading 2008.97.10, HTSUS, provides for fruit mixtures packaged in airtight containers and not containing apricots, citrus fruits, peaches or pears. Based on the record, we find that the tropical fruit cocktail at issue is packaged in airtight cans and contains pineapples, red and yellow papaya, and guava. It is also preserved in light syrup. It does not contain apricots, citrus fruits, peaches or pears. Upon review, we find that the tropical fruit cocktail at issue is provided for in subheading 2008.97.10, HTSUS, since it is packaged in airtight containers and contains a fruit mixture which does not include apricots, citrus fruits, peaches or pears. We note that the record references NY N235168, dated November 30, 2012. In NY N235168, CBP classified a fruit mixture packaged in liquid under subheading 2008.97.90, HTSUS. The record suggests that NY N235168 stands for the proposition that fruit mixtures packaged in syrup are precluded from classification in subheading 2008.97.10, HTSUS. We disagree. Consistent with the ENs to heading 2008, referenced above, fruit mixtures prepared or preserved in syrup are not precluded from being classified in heading 2008, HTSUS, and, consequently, subheading 2008.97.10, HTSUS. We note that the subject tropical fruit cocktail is different from the product at issue in NY N235168, which contained 20 percent lemon (a citrus fruit). In accordance with the foregoing, we note that fruit mixtures containing citrus fruits are excluded from heading 2008.97.10, HTSUS. Therefore, the product at issue in NY N235168 was classified in 2008.97.90, HTSUS, which provides for fruit mixtures containing apricots, citrus fruits, peaches or pears. Based on the foregoing, we conclude that the tropical fruit cocktail at issue is classified in heading 2008, HTSUS, and subheading 2008.97.10, HTSUS, which provides for “Fruit, Nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Mixtures: In airtight containers and not containing apricots, citrus fruits, peaches or pears.” HOLDING: By application of GRI 1 and 6, the tropical fruit cocktail at issue is classified in heading 2008, HTSUS, and specifically in subheading 2008.97.10, HTSUS, which provides for “Fruit, Nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Mixtures: In airtight containers and not containing apricots, citrus fruits, peaches or pears.” The 2014 general, column one rate of duty 5.6 percent ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/. You are to mail this decision to the Internal Advice requester no later than 60 days from the date of the decision. At that time, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel and the public on the CBP website located at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, Ieva K. O’Rourke, Chief Tariff Classification and Marking Branch