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HQ 954069


August 5, 1993

CLA-2 CO:R:C:F 954069 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 0812.10.00

Mr. Tom Edwards
B.C. Tree Fruits, Ltd.
1473 Water Street
Kelowna, British Columbia
V1Y 1J6

RE: U.S. Grown Cherries Preserved in Sulfur Dioxide (SO2) Brine; Not American Goods Returned

Dear Mr. Edwards:

This letter is in response to your inquiry of March 30, 1993, concerning the proper classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of a product identified as brined cherries, to be imported from Canada by Oregon Cherry Growers, Inc.

FACTS:

The product consists of cherries measuring less than 17.4 millimeters and/or greater than 21 millimeters in diameter, in a brine solution containing sulfur dioxide (SO2). The cherries are of U.S. origin, and are exported to Canada, where they are placed in brine for preservation. The cherries will be imported within the solution.

ISSUE:

Whether the U.S.-origin cherries are entitled to a duty exemption under subheadings 9801.00.10, HTSUSA.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, 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 may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRIs.

Edible fruit and nuts are generally classified in Chapter 8, HTSUSA. Chapter 8 falls within Section II, HTSUSA, to which section there are no legal notes. Note 1, to Chapter 8, states that "[t]his chapter does not cover inedible nuts or fruit." The EN to Chapter 8 indicates that the Chapter covers fruit generally intended for human consumption (whether as presented or after processing), and that the fruit may be provisionally preserved, provided it is unsuitable for immediate consumption in that state. Heading 0812, HTSUSA, provides for "[f]ruit and nuts, provisionally preserved (for example, by sulfur dioxide gas, in brine, in sulfur water or in other preservative solutions), but unsuitable in that state for immediate consumption:." Subheading 0812.10.00, HTSUSA, provides for provisionally preserved cherries that are unsuitable, in that state, for immediate consumption, which is the proper classification for the brined cherries.

Subheading 9801.00.10, HTSUSA, provides for the duty-free entry of products of the U.S. that are returned after having been exported, without having been advanced in value or improved in condition by any process of manufacture or other means while abroad, provided there has been compliance with the documentary requirements of section 10.1, Customs Regulations (19 CFR 10.1).

In order to determine whether the cherries of U.S. origin are advanced in value or improved in condition while abroad, we first examine some of the benefits of sulfur dioxide brining. The object of preserving cherries with brine is to bleach the fruit to an even, light straw color, so that subsequent dyeing of the fruit will attain the desired shade. Brining also firms the
tissue, allowing the fruit to retain its original shape throughout ensuing commercial processing into brightly colored products such as maraschino and glace cherries. Sulfur dioxide in a water solution is a versatile additive whose antioxidant properties retard losses of ascorbic acid and carotene, and reduce spoilage and discoloration. Sulfur dioxide brining is a quick and inexpensive means of preserving large quantities of fruit, allowing manufacturers a period of time in which to ship and store cherries without loss, while arranging for various remanufacturing processes.

In this case, the U.S.-origin cherries are placed in a brine solution in Canada to bleach the fruit, firm the tissue, and provisionally preserve the goods, rendering the product workable for manufacturing processes yet to occur in the U.S. The brining process advances in value and improves in condition the U.S.- origin cherries. Therefore, when imported, the brined cherries will not be entitled to duty-free treatment under subheading 9801.00.10, HTSUSA.

HOLDING:

The cherries preserved in sulfur dioxide (SO2) brine are classified under subheading 0812.10.00, HTSUSA, the provision for "[f]ruit and nuts, provisionally preserved (for example, by sulfur dioxide gas, in brine, in sulfur water or in other preservative solutions), but unsuitable in that state for immediate consumption: Cherries."

Since the merchandise is a qualifying good from Canada, that is, wholly obtained or produced in the territory of Canada and/or the United States, and meets the requirements of General Note 3(c)(vii)(B), HTSUSA, it will enjoy preferences under the United States-Canada Free Trade Agreement (CFTA). The rate of duty under the CFTA for this subheading is 10.4 cents per kilogram.

The U.S.-origin cherries are not entitled to a duty exemption under subheading 9801.00.10, HTSUSA.

Sincerely,

John Durant, Director

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