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HQ 087065

July 27, 1990

CLA-2 CO:R:C:G 087065 RFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 2008

Ms. Peggi Johnson
Fancy Foods International, Inc.
731-743 East 25th Street
Norfolk, VA 23504

RE: Pasteurized fruits, nuts, and mint

Dear Ms. Johnson:

This ruling letter is in response to your recent request on behalf of Fancy Foods International, Inc., concerning the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUSA) of certain pasteurized fruit, nut and mint products.

FACTS:

The goods consist of certain fruit, nut, or mint leaves that have been, as appropriate, skinned, stoned, trimmed, crushed, shifted, sweetened, pasteurized, packaged, and blast frozen. The goods come in several varieties (depending on the particular fruit, nut or other edible plant part, e.g., mint leaves, on which they are based) and are used in the preparation of sauces, sorbets, ice creams, mousses, and the like.

ISSUES:

(1) Whether fruits that have been "pasteurized" should be classified under the HTSUSA as simply a particular type of fruit or as "fruit purees" or as fruits that have been "otherwise prepared or preserved."

(2) Whether nuts that have been "pasteurized" should be classified under the HTSUSA as simply a particular type of nut or as "nut purees" or as nuts that have been "otherwise prepared or preserved."

(3) Whether mint leaves that have been "pasteurized" should be classified under the HTSUSA as simply mint leaves or as "mint purees" or as edible parts of plants that have been "otherwise prepared or preserved."

LAW AND ANALYSIS

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 requires that classification be determined first according to the terms or the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs, taken in order.

In the instant classification analysis, there exist three chapters in which one or more of the goods may be potentially classified: to wit, chapter 8, chapter 12 (heading 1211 for the mint product), and chapter 20 (headings 2007 and 2008). Chapter 8 covers, among other things, edible fruits and nuts. The general notes to the Explanatory Notes to chapter 8 state that these fruits and nuts may be fresh, frozen, dried, or provided they are unsuitable for immediate consumption in that state, they may be provisionally preserved. Also, the fruits and nuts may be whole, sliced, chopped, shredded, stoned, pulped, grated, peeled or shelled. The Notes, however, also state that excluded from chapter 8 are "[e]dible fruit and nuts and peel of melons or citrus fruit, prepared or preserved otherwise than as described...[in the general notes]...[and that]...[fruit and nut] products put up in...[airtight] packings [generally] have been prepared or preserved otherwise than as provided for in...[chapter 8,] and are therefore excluded [from this chapter]." Chapter 20 is then listed as the proper chapter for the classification of such goods. Edible fruit and nuts that have been skinned, stoned, trimmed, crushed, shifted, sweetened, pasteurized, packaged and blast frozen are not "prepared or preserved" as described in the general notes to or provided for in chapter 8. Therefore, such goods are not properly classified in chapter 8 but may be classified, as discussed in the general notes to chapter 8, in chapter 20.

In chapter 12, heading 1211 provides for mint leaves. This provision, however, is restricted to mint leaves that are "used primarily in perfumery, in pharmacy, or for insecticidal, fungicidal or similar purposes and [are] fresh or dried, whether or not cut, crushed or powered." In the instant case, the mint is neither used for nor imported in any of the forms set forth in heading 1211. Therefore, the instant mint product is not properly classified under heading 1211.

The third potential chapter in which the goods may be classified is chapter 20. Within this chapter, heading 2007 provides for, among other things, fruit and nut purees. The Explanatory Notes to heading 2007, however, limit these purees to those that consist of "boiled sieved fruit pulp or powdered nuts." The instant goods are "pasteurized," which involves a sterilization process that may or may not include boiling. See Webster's Ninth New Collegiate Dictionary 861 (1989) (pasteurization involves "partial sterilization of a substance and...at a temperature and for a period of exposure that destroys objectionable organisms without major chemical alteration of the substance"). Therefore, as the instant goods are pasteurized and not boiled (or possibly simply boiled), they are not properly classified under heading 2007.

Also within chapter 8 is heading 2008. This heading 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. The Explanatory Notes to heading 2008 state that "[t]his heading covers fruit, nuts and other parts of plants [e.g., mint leaves], whether whole, in pieces or crushed, including mixtures thereof, prepared or preserved otherwise than by the processes specified...[elsewhere in the HTSUSA]." The Notes also state that "[t]he products of this heading are generally put up in cans, jars or airtight containers, or in casks, barrels or similar containers." Sterilized fruit pulp and crushed and sterilized whole fruit (whether or not peeled or with the stones or pips removed) are listed in the Notes as examples of the type of goods included within heading 2008. Sterilization, as discussed above, is a process that occurs during pasteurization. Within heading 2008, then, should be classified fruits, nuts, and mint leaves (as they are edible parts of plants) (1) that have been "pasteurized" (which, in view of the above discussions, involves a process of preparation or preservation not elsewhere specified or included in the HTSUSA) and (2) that are packaged in airtight bags or containers.

In light of the above, all of the above-described products are properly classified under subheading 2008.

HOLDING:

The above-described products are properly classified under the following subheadings of the HTSUSA:

PRODUCT SUBHEADING GENERAL RATE OF DUTY

Coconut 2008.19.1500 3%

Pineapple 2008.20.0010 0.55 cents/kg

Orange 2008.30.3500 17.5%

Lemon 2008.30.3700 15%

Lime 2008.30.3700 15%

Grapefruit 2008.30.3700 15%

Tangerine 2008.30.3700 15%

Pear 2008.40.0020 18%
(containers less than 1.4 kg)

2008.40.0040 18%
(other)

Apricot 2008.50.2000 12.5%

Morello Cherry 2008.60.0060 15.4 cents/kg + 10%

White Peach 2008.70.0020 20%
(container less than 1.4 kg)

2008.70.0040 20%
(other)

Yellow Peach 2008.70.0020 20%
(container less than 1.4 kg)

2008.70.0040 20%
(other)

Strawberry 2008.80.0000 14%

Wild Strawberry 2008.80.0000 14%

Cocktail mix 2008.92.1000 7%
(airtight containers
& no apricots, citrus fruits, peaches or pears)

2008.92.9090 17.5%
(other)

Apple 2008.99.0500 1.1 cents/kg

Banana 2008.99.1300 5.6%

Blueberry 2008.99.1800 3.5%

Blackcurrant 2008.99.2000 7%

Blackcurrant Tenah 2008.99.2000 7%

Blackberry 2008.99.2000 7%

Redcurrant 2008.99.2000 7%

Raspberry 2008.99.2000 7%

Soursop 2008.99.2300 2.1%

Muscat grape 2008.99.2900 7%

Guava 2008.99.3000 Free

Mango 2008.99.4000 3.3 cents/kg

Papaya 2008.99.4500 17.5%

Mirabelle Plum 2008.99.6000 17.5%

Prune 2008.99.6000 17.5%

Kiwi 2008.99.8000 15%

Melon 2008.99.8000 15%

Passion fruit 2008.99.8000 15%

Mint 2008.99.9090 7%

Please be advised that the duties set forth above are classified as ad valorem (a percentage which is applied to the dutiable value of the imported goods), specific (a specified amount per unit of weight, gauge, or other measure of quantity, as 10 cents per pound), or compound (one combining specific and ad valorem duties upon a single item of goods, as 10 cents per pound and 35 percent ad valorem).

Sincerely,

John Durant, Director
Commercial Rulings Division

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See also:

• Tariff No.: 2008.19.15 - Coconuts, otherwise prepared or preserved, nesi
• Tariff No.: 2008.20.00 - Pineapples, otherwise prepared or preserved, nesi
• Tariff No.: 2008.30.35 - Orange pulp, otherwise prepared or preserved, nesi
• Tariff No.: 2008.30.37 - Citrus fruit pulp other than orange, otherwise prepared or preserved, nesi
• Tariff No.: 2008.40.00 - Pears, otherwise prepared or preserved, nesi
• Tariff No.: 2008.50.20 - Apricot pulp, otherwise prepared or preserved, nesi
• Tariff No.: 2008.60.00 - Cherries, otherwise prepared or preserved, nesi
• Tariff No.: 2008.70.00 - Peaches (excluding nectarines), otherwise prepared or preserved, nesi
• Tariff No.: 2008.80.00 - Strawberries, otherwise prepared or preserved, nesi
• Tariff No.: 2008.92.10 - Mixtures of fruit or edible parts of plants, in airtight cont. excl. apricots, citrus, peaches or pears (incl. canned tropical fruit salad)
• Tariff No.: 2008.92.90 - Mixtures of fruit or other edible parts of plants, otherwise prepared or preserved, nesi (excluding tropical fruit salad)
• Tariff No.: 2008.99.05 - Apples, otherwise prepared or preserved, nesi
• Tariff No.: 2008.99.13 - Banana pulp, otherwise prepared or preserved, nesi
• Tariff No.: 2008.99.18 - Blueberries, otherwise prepared or preserved, nesi.
• Tariff No.: 2008.99.20 - Berries, other than blueberries and strawberries, otherwise prepared or preserved, nesi
• Tariff No.: 2008.99.23 - Cashew apples, mameyes colorados, sapodillas, soursops and sweetsops, otherwise prepared or preserved, nesi
• Tariff No.: 2008.99.29 - Grapes, otherwise prepared or preserved, nesi
• Tariff No.: 2008.99.30 - Guavas, otherwise prepared or preserved, nesi
• Tariff No.: 2008.99.40 - Mangoes, otherwise prepared or preserved, nesi
• Tariff No.: 2008.99.45 - Papaya pulp, otherwise prepared or preserved, nesi
• Tariff No.: 2008.99.60 - Plums (including prune plums and sloes), otherwise prepared or preserved, nesi
• Tariff No.: 2008.99.80 - Pulp of fruit nesi, and other edible parts of plants nesi, excluding mixtures, otherwise prepared or preserved, nesi
• Tariff No.: 2008.99.90 - Fruit nesi, and other edible parts of plants nesi, other than pulp and excluding mixtures, otherwise prepared or preserved, nesi