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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.

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."

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

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