HQ 950921
January 13,1992
CLA-2 CO:R:C:F 950921 JGH
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.
-2-
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)
-3-
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
Commercial Rulings Division
hurley library/peh
950926
8cc CIE