CLA-2:RR:CR:GC 967144 IOR
Tariff No.: 2008.92.9094; 2008.92.1040
Mirko Vukojicic
YUSA Export Import Mgt. Co.
6307 Forest ridge Drive
Durham, NC 27713
Re: Modification of New York Ruling Letter (NYRL) K85427, dated May 3, 2004; WAHOP S
Dear Mr. Vukojicic:
This is a letter modifying NYRL K85247, which was issued to you May 3, 2004 (a copy of which is enclosed). Since this is a modification of a prior interpretative ruling which has not been in effect for 60 days, the exclusion in section 625(c)(1), Tariff Act of 1930, (19 U.S.C. §1625(c)(1)), as amended by section 623 of title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), is applicable and publication of this modification in the Customs Bulletin is not required.
FACTS:
NYRL K85247 pertained to the classification of three different food preparations packed for retail sale in glass jars, one of which was WAHOP S. The WAHOP S is distinct from the other two food preparations because it consists of a mixture as opposed to stuffed plums. The sample of WAHOP S was opened, examined, and disposed of. WAHOP S was found to be composed of chopped plums and chopped walnuts bound in a very viscous, paste-like material. The ruling request described the product as “chopped sweet-dried plums mixed with nuts in honey.” The product label and the inquirer’s submission both state the ingredients to be 52 percent honey, 38 percent dry plums, and 10 percent walnuts. WAHOP S, along with the other two food preparations was determined to be classified in subheading 2008.99.6000, Harmonized Tariff Schedule of the United States (HTSUS), 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: Plums (including prune plums and sloes)….”
It has been brought to our attention that the WAHOP S should have been classified in subheading 2008.92, HTSUS, 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: Mixtures.”
ISSUE:
What is the proper classification of chopped plums and chopped walnuts bound in a very viscous, paste-like material.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most 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 2 through 6 may then be applied in order.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
There is no dispute that the WAHOP S is classifiable within heading 2008, HTSUS, at GRI 1. In order to determine the proper classification at the subheading level, GRI 6 is applied. GRI 6 requires that the GRIs 1 through 5 be applied in order to determine classification at the subheading level. The HTSUS subheadings under consideration are as follows:
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:
2008.92 Mixtures:
In airtight containers and not containing apricots, citrus fruits, peaches or pears
2008.92.1040 Other
Other
Other
Other
Other
Plums (including prune plums and sloes)
The guidance of the EN’s is helpful in the instant analysis. The EN to Heading 2008 describes what is covered by the subheadings at issue. The General Chapter note indicates that the Chapter includes the products subject thereto whether “whole, in pieces or crushed.” Merchandise under subheading 2008.92 is described as “mixtures” “including mixtures other than those of subheading 2008.19. Subheading 2008.19 provides for mixtures of nuts. Merchandise under subheading 2008.99 is described as “other.” The WAHOP S as described and verified by examination by the NCSD, is a mixture of chopped plums and walnuts in a viscous paste.
Subheading 2008.99.60, HTSUS, covers plums otherwise prepared or preserved, whereas, the subject merchandise is a mixture of pieces of plums and nuts otherwise prepared or preserved. In HQ 084864, dated October 10, 1989, fruit snacks composed of different fruits in a semi-solid paste form, were determined to be classified in subheading 2008.92, HTSUS. In NY D89989, dated April 23, 1999, spreadable fruit preparations, composed of pieces of different types of fruits suspended in a gelatinous mass, packed in glass jars, were determined to be classified in subheading 2008.92, HTSUS.
Based on NY D89989 and HQ 084864, we find that the WAHOP S is provided for in subheading 2008.92, HTSUS, as a mixture, because it consists of chopped plums mixed with nuts in honey. It is specifically provided for under subheading 2008.92.1040 when in an airtight container, as “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: Mixtures: In airtight containers and not containing apricots, citrus fruits, peaches or pears: Other”, or under subheading 2008.92.9094, HTSUS, when not in an airtight container as “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: Mixtures:Other:Other:Other.”
HOLDING:
By application of GRI 1 and 6, WAHOP S mixture of fruit and nuts, in an airtight container is classified in subheading 2008.92.1040, HTSUSA, as “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: Mixtures: In airtight containers and not containing apricots, citrus fruits, peaches or pears: Other” with a column one, general duty rate of 5.6%, and WAHOP S mixture of fruit and nuts, not in an airtight container is classified in subheading 2008.92.9094, HTSUSA, as “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: Mixtures: Other: Other: Other” with a column one, general duty rate of 14.9%. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY K85427, dated May 3, 2004, is modified.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division
Enc.