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HQ 950921


January 13,1992

CLA-2 CO:R:C:F 950921 JGH

CATEGORY: CLASSIFICATION

TARIFF NO.: 0813.10.00

Michael S. O'Rourke,Esq
Rode & Qualey
295 Madison Ave.
New York, N.Y. 10017

RE: Classification of dried, sulfured apricots under the Harmonized Tariff Schedules of the United States (HTSUS).

Dear Mr. O'Rourke:

Your letter of December 23, 1991, concerns the tariff classification of dried, sulfured apricots from Turkey.

FACTS:

The imported merchandise consists of dried apricots which have been subjected to sulfur dioxide treatment during the drying process. The reason for this treatment is primarily to assure that the fruit will retain its "apricot color", and secondarily, to aid in the drying process. You state that for over 60 years this product has been classified under the pertinent tariff provision for dried apricots. For 1990 it is claimed that about $16,300,000 worth of dried apricots were imported from Turkey, and all were entered and liquidated under the Chapter 8, HTSUS provisions. However, recently, you state, that importers have been notified by Customs at New York that dried apricots which have been treated with sulfur would be classified under subheading 2008.50.40, HTSUS, the provision for prepared or preserved apricots. Currently, you add, the average duty on a 40 foot container is approximately $400.00; if the proposed change in classification is effected, the duty on the same container would be increased to approximately $15,000.00.

In a letter from the Association of Food Industries, Inc., the fear was expressed that the sudden increase in duty would disrupt the whole market, affecting domestic exporters as well as importers of apricots. It was also emphasized that the USDA standards for dried fruits showed that normally sulfur dioxide is used in the processing.

ISSUE:

Whether dried apricots which have been treated with sulfur are classifiable under the provision for dried apricots in subheading 0813.10.00, HTSUS, or under the one for apricots, otherwise prepared or preserved in subheading 2008.50.40, HTSUS.

LAW AND ANALYSIS:

On the adoption of the HTSUS, Customs routinely reviewed the classification of merchandise in order to determine whether or not the language of the new tariff mandated a change in the classification. Not only were the new provisions viewed in the light of the General Rules of Interpretation, but also as a guide to an interpretation of the individual tariff provisions on the international level, the Explanatory Notes to the HTSUS were consulted. In this instance it was felt by the port that the Explanatory Notes describing the scope of the provisions for dried fruit restricted classification to those fruits which had been dried either by direct drying in the sun or by industrial processes, with no other processing involved; so that the additional treatment with sulfur was felt to take them out of the provision.

As indicated the Explanatory Notes are a guideline; they are not binding, but, nonetheless, the United States gives their definitions every consideration when interpreting the various tariff provisions. Although it is argued that the absence of any mention of sulfur treatment in the explanatory notes means that it is considered an additional step in the processing, there is no indication that the explanation for heading 0813, HTSUS, was not intended to apply to the commercially dried fruit. It is a basic tariff concept that Congress is presumed to know the language of commerce, and to have framed tariff acts so as to classify commodities according to general usage and denomination of the trade. Nylos Trading Company v. United States, 37 CCPA 71, C.A.D. 422 (1949)

Technical information available to this office, both from the Food and Drug Administration and the U.S. Department of Agriculture (USDA), indicates that the apricots are customarily treated with sulfur during the drying process. It is to be noted that in 7 CFR 52.5761, U.S. Department of Agriculture describes dried apricots as being halved and pitted, with the greater amount of moisture being removed, and sufficiently sulfured to retain a characteristic color. While it is true that Customs is not bound by the decisions and definitions of other governmental agencies, where such definitions reflect the commercial and common meaning of the merchandise, Customs will consider them, if they are not in conflict with a specific tariff definition. In this regard, it is interesting to note that the tariff summaries to the previous law, Tariff Schedules of the United States (TSUS), in describing certain dried fruit, specifically including apricots, states that "[I]n the United States the usual practice is to treat cut fruit with sulphur before drying by placing the fruit in a chamber with burning sulfur. The purpose is to retard spoilage and preserve color."

There is no indication that the Explanatory Notes to heading 0813 would modify this definition.

HOLDING:

Apricots subjected to sulfur treatment as part of the drying process are classifiable as dried apricots in subheading 0813.10.00, HTSUS.

Sincerely,

John Durant, Director

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