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