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HQ 966975




October 19, 2004

CLA-2 RR:CR:TE 966975 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 0811.90.8080

Port Director
Customs and Border Protection
P.O. Box 2450
San Francisco, CA 94126

RE: Decision on Application for Further Review of Protest No. 2809-04-100029 concerning the classification of a fruit product; frozen durian

Dear Port Director:

This is a decision on a protest timely filed on January 16, 2004, against your decision in the classification and liquidation under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a fruit product, frozen durian, entered at the Customs and Border Protection (CBP) Port of San Francisco, California. No samples were provided.

FACTS:

The subject merchandise is identified as frozen durian, Durio zibethinus, which is a fruit unique to Southeast Asia having a strong smell and distinctive taste. It is round or ovoid-shaped, generally 20 to 25 centimeters in length and 18 to 20 centimeters in diameter, weighing between one and 4.5 kilograms. Durians have a hard, segmented, yellow/green to brown-colored rind covered by thick, sharp-pointed, pyramid-shaped spikes. The edible portion (the aril) is the fleshy outgrowth of the seed’s outer covering, and is characterized by a sweet taste, creamy consistency, and strong, foul aroma.

The protest concerns a single entry of merchandise described as follows: “Aroy Brand and Coconut Tree Brand frozen durian with seeds and shell removed.” The subject merchandise was entered on December 17, 2002, and CBP classified and liquidated the entry on October 31, 2003, under subheading 0811.90.8080, HTSUSA, which provides for “Fruit uncooked or cooked by steaming or boiling in water, frozen, whether or not containing added sugar or other sweetening matter: Other: Other, Other.”

The protestant asserts that the merchandise should be classified in subheading 2008.99.9090, HTSUSA, which 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: Other, including mixtures other than those of subheading 2008.19: Other: Other: Other, Other.”

ISSUE:

What is the proper classification for the merchandise?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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 heading and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

We begin by noting that the protestant has not provided any criterion set forth in 19 CFR 174.24 which would justify further review. In the future, please note that the protestant must provide specific information to meet its claim that the Application for Further Review is warranted. See 19 CFR 174.25(b)(3); HQ 966550, dated August 22, 2003 and HQ 966810 dated December 10, 2003.

Heading 0811, HTSUSA, specifically provides for “Fruit . . . uncooked . . . frozen, whether or not containing added sugar or other sweetening matter”. The General Explanatory Note to Chapter 8, states that the Chapter covers fruit “whole, sliced, chopped, shredded, stoned, pulped, grated, peeled or shelled.” EN 08.11 provides additional guidance by stating that the heading applies to frozen fruit, which, “ . . . when fresh or chilled, are classified in the preceding headings of this Chapter.” In fact, we note that fresh durian is eo nomine provided for in a preceding heading, i.e., subheading 0810.60, HTSUSA, which provides for “Other fruit, fresh: Durians”.

In the instant case, the durian shell has been removed and the fruit separated from the seeds. The edible fruit portion is then frozen. As such, Heading 0811, HTSUSA, specifically provides for frozen fruit which has been “peeled” and had the seeds removed, e.g. “stoned” or “pulped”. CBP has previously held in Headquarter’s Ruling Letter (HQ) 084943, dated September 27, 1989, that frozen “kiwifruit puree” is classifiable in subheading 0811.90.60, HTSUSA, and notes that the Chapter covers fruit which is “. . . stoned, pulped . . . peeled or shelled” pursuant to the General Explanatory Notes to Chapter 8.

It is also important to note that heading 2008, HTSUSA, is a basket provision that generally provides for “Fruit, . . . otherwise prepared or preserved, . . . not elsewhere specified or included” (emphasis supplied). Since the subject product, frozen durian, is described in heading 0811, HTSUSA, which precedes heading 2008, HTSUSA, there is no occasion to consider classification in subheading 2008.99.9090, HTSUSA.

In view of the foregoing, we find that CBP correctly classified and liquidated the subject product under subheading 0811.90.8080, HTSUSA, which provides for “Fruit uncooked or cooked by steaming or boiling in water, frozen, whether or not containing added sugar or other sweetening matter: Other: Other, Other.”

HOLDING:

The subject merchandise, frozen durian, is correctly classified in subheading 0811.90.8080, HTSUSA, which provides for, “Fruit and nuts, uncooked or cooked by steaming or boiling in water, frozen, whether or not containing added sugar or other sweetening matter: Other: Other, Other.” The general column one duty rate at the time of entry was 14.5 percent ad valorem.

The protest should be DENIED. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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