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HQ 088029


January 29, 1991

CLA-2 CO:R:C:F 088029 RFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 2009.19.4000; 2009.20.4040; 2009.40.4040; 2009.60.0020; 2009.70.0090; 2009.90.4000

District Director
U.S. Customs Service
Patrick V. McNamara Building
477 Michigan Ave.
Detroit, Michigan 48266

RE: Decision on Application for Further Review of Protest No. 3810-0-001882, on classification of fruit juices

Dear Sir:

This is a decision on an application for further review of a protest filed on April 18, 1990, against your decision in the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of fruit juices, which were covered by nineteen entries made from April 3, 1989 through August 14, 1989. Seventeen entries were liquidated on January 5, 1990 and two entries, numbers 186-0102939-2 and 186-0102955-8, were liquidated on February 2, 1990. The protest against the classification of the seventeen entries which were liquidated on January 5, 1990, was not timely filed and, therefore, was properly denied. Further review was allowed with respect to the remaining two entries liquidated on February 2, 1990, and corresponding to bill numbers 41164470 and 41164471. The classification of the merchandise covered by those entries constitutes the subject of this protest review decision.

FACTS:

There are six products whose classification is at issue. In a May 19, 1989, correspondence from the importer, the products are identified together with Brix values as follows:

PRODUCT BRIX VALUE

ORANGE JUICE 11.0

APPLE JUICE 11.0

GRAPEFRUIT JUICE 10.0

PINEAPPLE JUICE 11.0

PINEAPPLE ORANGE JUICE 11.0

GRAPE JUICE 12.5

ISSUE:

What is the proper classification under the HTSUSA of products consisting of concentrated fruit juices and water in such amounts that the products have Brix values within the range of reconstituted fruit juices?

LAW AND ANALYSIS:

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

In the instant protest, the headings at issue are 2009 and 2202. Heading 2009 provides for, among other things, fruit juices. Guidance concerning what constitutes "fruit juices" for purposes of classification under heading 2009 and relevant to the instant products can be found in the Explanatory Notes to this heading. These Notes state, in part, that:

[Classified in this heading are]...reconstituted juices (i.e., products obtained by the addition, to the concentrated juice, of a quantity of water not exceeding that contained in similar non-concentrated juices of normal composition)...However,...the addition to a concentrated juice of a greater quantity of water than is necessary to reconstitute the original natural juice, results in diluted products which have the character of beverages of [heading 2202].

Under this heading, then, are classified products that as imported consist of concentrated fruit juices to which has been added water in limited amounts.

The alternative heading at issue is 2202. This heading provides for waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavored, and other nonalcoholic beverages, not including fruit or vegetable juices of heading 2009. Guidance concerning what constitutes "non- alcoholic beverages" for purposes of classification under heading 2202 and relevant to the instant products can be found in the Explanatory Notes to this heading. These Notes state, in part, that:

This heading covers...[b]everages such as lemonade, orangeade, cola, consisting of ordinary drinking water, sweetened or not, [flavored] with fruit juices or essences, or compound extracts, to which citric or tartaric acid are sometimes added. They are often aerated with carbon dioxide gas, and are generally presented in bottles or other airtight containers.

Under this heading, then, are classified, among other things, products that as imported consist primarily of water with small or limited amounts of fruit juice for flavoring.

In the instant case, each of the products as imported merely consists of concentrated fruit juice(s) and water. With each product, the amount of water added to the concentrated fruit juice(s) is of a quantity that results in a product with a Brix value well within the range of the particular reconstituted fruit juice(s). See 19 CFR 151.91. (There exist no minimum or maximum Brix values for unconcentrated or reconstituted fruit juices but rather just averages.) Thus, each of these products is a "reconstituted juice(s)" as described above in the Explanatory Notes to heading 2202. Moreover, the products are identified and labeled in various correspondence and documents of record from the importer as fruit juices. In light of the above, then, these products are "fruits juices" for purposes of classification under heading 2009 rather than "other non-alcoholic beverages" for purposes of classification under heading 2202.

HOLDING:

The product identified above as orange juice is properly classified under subheading 2009.19.4000, HTSUSA, which provides for, among other things, fruit juices, orange juice, other, other. Goods classified under this subheading and qualifying for special tariff treatment under the United States-Canada Free-Trade Agreement (FTA) receive a 1989 rate of duty of 8.3 cents per liter. The general rate of duty is 9.25 cents per liter.

The product identified above as apple juice is properly classified under subheading 2009.70.0000., HTSUSA, which provides for, among other things, fruit juices, apple juice. Goods classified under subheading 2009.70 are subject to the quantitative limitations (or quota restrictions) of subheading 9903.17.15. Goods classified under subheading 2009.70.0000 and qualifying for the general rate of duty may enter free of duty.

The product identified above as grapefruit juice is properly classified under subheading 2009.20.4000, HTSUSA, which provides for, among other things, fruit juices, grapefruit juice, other, other. Goods classified under this subheading and qualifying for special tariff treatment under the FTA receive a 1989 rate of duty of 8.3 cents per liter. The general rate of duty is 9.25 cents per liter.

The product identified above as pineapple juice is properly classified under subheading 2009.40.4040, HTSUSA, which provides for, among other things, fruit juices, pineapple juice, other, other. Goods classified under this subheading and qualifying for special tariff treatment under the FTA receive a 1989 rate of duty of 1.1 cent per liter. The general rate of duty is 1.3 cents per liter.

The product identified above as pineapple orange juice is properly classified under subheading 2009.90.4000, HTSUSA, which provides for, among other things, fruit juices, mixtures of juices, other. Goods classified under this subheading and qualifying for special tariff treatment under the FTA receive a 1989 rate of duty of 8.3 cents per liter. The general rate of duty is 9.25 cents per liter.

The product identified above as grape juice is properly classified under subheading 2009.60.0020, HTSUSA, which provides for, among other things, fruit juices, grape juice, not concentrated. Goods classified under this subheading and qualifying for special tariff treatment under the FTA receive a 1989 rate of duty of 5.9 cents per liter. The general rate of duty is 6.6 cents per liter.

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
Commercial Rulings Division

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