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HQ 954141

November 16, 1993

CLA-2 CO:R:C:F 954141 JGH

CATEGORY: CLASSIFICATION

TARIFF NO.: 2006.00.40

Mr. Richard J. Sullivan
Association of Food Industries, Inc.
5 Ravine Drive
P.O. Box 776
Matawan, New Jersey 07747

RE: Classification of Processed Pineapple under the Harmonized Tariff Schedule of the United States (HTSUS).

Dear Mr. Sullivan:

Your letter of May 4, 1993, concerns the classification of what is referred to as dried or dehydrated pineapple that contains sulfur dioxide, and is sweetened with sugar.

FACTS:

The processing steps are given as follows:

Fresh fruit is peeled and cut;

Then blanched for 3-4 hours in a sulfite brine to retain its color.

Product is then washed to remove much of the sulfite.

Then put in boiling water to wash out about 90% of the sugar in the product;

Product is then drained, and put in stainless steel tubs where sugar is added to bring the brix level up to 65 - 70%.

Product is then trimmed, cut and sliced into rings, and dried to about 11% moisture.

Final step is packaging in boxes lined with glycine paper. - 2 -

Neither a sample nor an analysis of the product as imported was submitted.

ISSUE:

Classification of pineapple processed as described above in the HTSUS.

LAW AND ANALYSIS:

It is your opinion that pineapple processed in the manner described is classifiable under the provision for pineapple which is otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter, in subheading 2008.20.00, HTSUS. You maintain that the product is not preserved by the sugar, but has to be dried and treated with sulfur dioxide for preservation. In contrast, you note that glace pineapple classifiable in subheading 2006.00.4000, HTSUS, for fruits preserved by sugar (drained, glace or crystallized), has a higher brix level and a different use - dried or dehydrated pineapple is said to be used as a snack food, while glace pineapple is used as an ingredient in fruit cakes and other bakery articles.

The Explanatory Notes to Heading 2006 state that the fruit products covered by the Heading are prepared by first treating the fruit, nuts other plant parts with boiling water (to facilitate penetration of the sugar), and then by repeated heating to boiling point and storage in syrups of increasing sugar concentration until they are sufficiently impregnated with sugar to ensure their preservation.

The issue involved here was similar to that considered by the court in S & T Imports, Inc. v. United States (C.D. 4690), under the previous law, The Tariff Schedules of the United States (TSUS), which had parallel provisions. The pineapple in that case underwent a processing similar to that described here: Pineapple was immersed for an extended period in brine which contained sulphur dioxide as a preservative; the fruit was then subjected to repeated boilings and immersions in sugar syrups, until a density of 75 degree brix is obtained. The court concluded, based on the evidence submitted, that candied or glace fruits are those which have been processed to a point where they contain about 70% sugar solids. The court stated that it was clear that the tariff provision for prepared or preserved pineapple was not meant to cover pineapple which had been produced by the slow impregnation process but was intended to cover canned pineapple in syrup or pineapple shipped in brine or water. - 3 -

From its consideration of the evidence, including technical information, the court concluded that fruits preserved by sugar concentration of 70% (and in some cases less) are preserved to a point where microbial spoilage cannot occur; that candied fruits are prepared by gradually concentrating fruits in syrup until the fruit is heavily impregnated with syrup, followed by drying to overcome stickiness.

The processing appears to be similar in this case. The fruit is immersed and cooked in increasingly higher sugar concentrations, over a long period of time, until the pineapple reaches the desired brix level. Just as the court pointed out that the increasing amounts of sugar immersions not only result in a candied fruit, but also that sugar is the method for preserving the fruit; it emphasized that a fruit with 70%, or possibly less, sugar concentration would be sufficient preservation. As the Explanatory Notes to Heading 2008 state, the provision covers fruit which is preserved by sugar and put up in sugar syrup; in contrast, here the fruit is repeatedly immersed in higher sugar concentrations until impregnated with sugar.

HOLDING:

Pineapple processed with sugar as described is fruit preserved by sugar (drained, glace or crystallized): pineapples, in subheading 2006.00.40, HTSUS. The rate of duty is 3.4 percent ad valorem.

Sincerely,

John Durant, Director

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