OT:RR:CTF:FTM H307154 MJD
Mr. John M. Peterson
Neville Peterson LLP One Exchange Plaza 53 Broadway, Suite 2602
New York, New York 10006
RE: Ruling Request; Mixtures of Individually Quick Frozen Fruits from Canada
Dear Mr. Peterson:
This is in response to your letter, dated October 22, 2019, filed on behalf of Nature’s Touch Frozen Foods (West) Inc. (“Nature’s Touch”), in which you request a binding ruling from U.S. Customs and Border Protection (“CBP”) concerning the classification of two mixtures of individually quick frozen (“IQF”) fruits from Canada under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
Your October 22, 2019 letter (“ruling request”) describes the two products to be imported as mixtures of IQF fruits. You indicate that both products are combined in specific proportions and packaged in bags in Canada, and are then imported into the United States for retail sale. The percentage of fruit contained in these mixtures, by weight, are as follows:
Mixture 1 Mixture 2
Strawberries – 25% Mangoes – 34%
Blueberries – 25% Raspberries – 33%
Red Raspberries – 25% Cherries – 33%
Blackberries – 25%
In your ruling request you also state that the two mixtures are “ready-to-serve, and require no further processing or preparation.” Furthermore, you indicate that both mixtures only contain the frozen fruits listed above. There are no added sugars, ingredients, or flavors included in the frozen fruit mixtures.
ISSUE:
What is the classification of the mixtures of IQF fruits imported by Nature’s Touch from Canada?
LAW AND ANALYSIS:
Classification decisions under the HTSUS are made in accordance with the General Rules of Interpretation (“GRIs”). 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 headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. Pursuant to GRI 6, classification at the subheading level issues the same rules, mutatis mutandis, as classification at the heading level.
The 2020 HTSUS provisions under consideration in this case are as follows:
0811 Fruit and nuts, uncooked or cooked by steaming or boiling in water, frozen, whether or not containing added sugar or other sweetening matter:
2106 Food preparations not elsewhere specified or included:
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In interpreting the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) may be utilized. The ENs, though not dispositive or legally binding, provide 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).
The EN to Chapter 8, HTSUS, states, in pertinent part, the following:
This Chapter covers fruit, nuts and peel of citrus fruit or melons (including watermelons), generally intended for human consumption (whether as presented or after processing). They may be fresh (including chilled), frozen (whether or not previously cooked by steaming or boiling in water or containing added sweetening matter) or dried (including dehydrated, evaporated or freeze-dried); provided they are unsuitable for immediate consumption in that state, they may be provisionally preserved (e.g., by sulphur dioxide gas, in brine, in sulphur water or in other preservative solutions).
The EN to heading 0811, HTSUS, provides in relevant part:
This heading applies to frozen fruit and nuts which, when fresh or chilled, are classified in the preceding headings of this Chapter.
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You argue that mixtures of frozen fruits are not provided for in Chapter 8 of the HTSUS, and that CBP has in the past incorrectly classified mixtures of frozen fruits under subheading 0811.90, HTSUS, 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.” In addition, you claim that CBP has inaccurately classified mixtures of frozen fruits as “mixtures” or “composite goods” by application of GRI 3(b) or GRI 3(c). You state that heading 0811, HTSUS, provides for individual fruits, not mixtures of fruits, as the subheading list individual fruits. While subheadings under 0811, HTSUS, provides for “other” fruits you argue that these provisions are presumably allocated for individual fruits since the other subheadings list individual fruits. Despite the fact that subheading, 0811.90.8085, HTSUSA (Annotated), provides for “Frozen mixes only of combinations of strawberries, blueberries, red raspberries or blackberries,” you claim that as a statistical subheading it is not a provision of law and should be disregarded. Instead, you conclude that mixtures of frozen fruits are “food preparations” and should be classified by application of GRI 1 under subheading 2106.90.98, HTSUS, which provides for “Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Other.” Upon review of the two mixtures of frozen fruits in this case, we disagree with your arguments.
Both mixtures of IQF fruits are provided for in heading 0811, HTSUS, which is specifically designated for frozen fruits eo nomine. Furthermore, the ENs cited above confirm that heading 0811, HTSUS, provides for frozen fruits. The fact that “mixtures of frozen fruits” are not explicitly enumerated in heading 0811, HTSUS, is not determinative because frozen fruits are specifically provided for in heading 0811, HTSUS, eo nomine, and are further enumerated at the subheading level.
Moreover, subheading 0811.90.8085, HTSUSA, provides for “Frozen mixes only of combinations of strawberries, blueberries, red raspberries or blackberries.” Mixture 1 is specifically provided for in that subheading. Although there are no other subheadings under heading 0811, HTSUS, that provide for mixtures of frozen fruits, subheading 0811.90.8085, HTSUSA, is indicative of the fact that frozen fruit mixtures are provided for in heading 0811, HTSUS. You stated that subheading 0811.90.8085, HTSUSA, is a statistical subheading that should be ignored when determining the classification of the frozen fruit mixtures at issue. However, in determining the classification of the frozen fruit mixtures, the headings and then the subheadings through the 8-digit level are considered under GRI 1, not the statistical subheading, to conclude that mixtures of frozen fruits are classified under heading 0811, HTSUS. Therefore, because frozen fruits are provided for eo nomine in heading 0811, HTSUS, the two mixtures of IQF fruits from Nature’s Touch are classified in heading 0811, HTSUS, by application of GRI 1.
Heading 2106, HTSUS, provides for food preparations not specified or included elsewhere in the schedule. Classification under heading 2106, HTSUS, would only occur if the terms of no other heading in the schedule adequately describe the instant product. Since frozen fruits are specifically listed for in heading, 0811, HTSUS, mixtures of frozen fruits such as the ones at issue here, cannot be classified in heading 2106, HTSUS. Further, in this case, “mixtures of frozen fruits” is mere commingling of frozen fruits classifiable in Chapter 8, HTSUS. Such commingling does not render the product a food preparation. The art of mixing does not alter the nature or use of the product such that it would no longer be classifiable in Chapter 8, HTSUS. Therefore, heading 2106, HTSUS, is excluded from any consideration.
In addition, CBP has consistently classified frozen fruit mixtures in subheading 0811.90, HTSUS. See New York Ruling Letter (“NY”) J88542, dated September 8, 2003 (classifying three different types of IQF fruit mixtures called “frozen fruit medley”); NY R03540, dated April 11, 2006 (classifying the Fiesta Tropical Blend frozen fruit mixture consisting of 30% peaches, 20% kiwifruit, 20% pineapple, 15% cantaloupe, and 15% mangoes); NY N061157, dated May 26, 2009 (classifying the “Mangolicious mixture,” “Fiesta Tropical mix,” “Caribbean Treasure mix,” “Fruit Salad,” and “Mixed Fruit” IQF fruit mixtures); and NY N196616, dated January 6, 2012 (classifying the Asian Exotic Blend frozen fruit mixture that consisted of 45% mango, 35% rambutan, and 20% litchi).
Based on the foregoing, we conclude that the two mixtures of IQF fruits at issue are classified under heading 0811, HTSUS. Specifically, Mixture 1 is classified under subheading 0811.90.8085, 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: Frozen mixes only of combinations of strawberries, blueberries, red raspberries or blackberries,” and Mixture 2 is classified under subheading 0811.90.8095, 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.”
HOLDING:
In accordance with GRI 1 both frozen fruit mixtures are classified under heading 0811, HTSUS, 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.”
Mixture 1 is specifically classified under subheading 0811.90.8085, 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: Frozen mixes only of combinations of strawberries, blueberries, red raspberries or blackberries.” The general rate of duty is 14.5% ad valorem.
Mixture 2 is specifically classified under subheading 0811.90.8095, 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 rate of duty is 14.5% ad valorem.
A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely, Yuliya A. Gulis, Chief
Food, Textiles, and Marking Branch