HQ H008632

September 17, 2008

CLA-2 OT:RR:CTF:TCM H008632 IDL

CATEGORY: Classification

Assistant Area Port Director

U.S. Customs and Border Protection

9901 Pacific Highway

Blaine, Washington 98230

Re: Application for Further Review of Protest No. 3004-06-100033; Fruit
Energy Bulk Bars; Flat Fruit

Dear Sir:

This is our decision regarding the Application for Further Review
("AFR") of Protest No. 3004-06-100033, timely filed by UPS Supply Chain
Solutions, Inc. ("UPS") on behalf of Tree Top, Inc. ("protestant"),
against Customs and Border Protection's (CBP's) classification of "fruit
energy bulk bars" and "flat fruit", under the Harmonized Tariff Schedule
of the United States Annotated (HTSUSA).

**FACTS:**

The subject merchandise is described in an accompanying invoice as
"14-gram flat fruit" in "strawberry", "raspberry", "cherry", and "grape"
flavors, and "37- gram fruit energy bulk bars" in "citrus", "tropical
plus", "wildberry plus", and "cherry berry" flavors. They are
manufactured by Sun-Rype Products, Ltd.

The Quality Assurance Supervisor of Sun-Rype Products, Ltd. provided a
letter, dated May 16, 2006, to Tree Top, Inc., stating that the subject
products are packaged in a "flexible multi-layer material specifically
designed to provide barrier properties against water and air. Packages
are not hermetically sealed but in practical terms can be considered
airtight." A CBP laboratory analyzed a sample of the flat fruit (Report
No. SF20061285, dated January 22, 2007), but was unable to reliably
determine whether the packages were airtight.

**ISSUE:**

Whether the port properly classified and liquidated the subject
merchandise?

**LAW AND ANALYSIS:**

Initially, we note that the matter protested is protestable under 19
U.S.C. §1514(a)(2) as a decision on the classification and rate and
amount of duties chargeable. The protest was timely filed within 180
days of liquidation of the entries. (Miscellaneous Trade and Technical
Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii)
(codified as amended at 19 U.S.C. § 1514(c)(3) (2007)). CBP properly
approved the Application for Further Review, as the protestant, alleging
that the port's decision is inconsistent with New York Ruling Letter
(NY) L81447, dated December 22, 2004, has met the requirements of 19 CFR
§ 174.24(a) and § 174.25.

On December 20, 2004, the protestant entered the flat fruit and fruit
energy bulk bars, imported from Canada, under 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 sprit, not elsewhere specified or included: Other,
including mixtures other than those of subheading 2008.19: Mixtures:
Other: Other: Other", with a claim for duty-free entry under the North
American Free Trade Agreement (NAFTA).

On November 1, 2005, CBP issued a Notice of Action (CBP Form 29),
advising that an increase in duties had been assessed and the claim for
NAFTA preferential treatment was denied. On November 18, 2005, CBP
liquidated the entry under subheading 2008.92.9094, HTSUSA. On May 16,
2006, UPS filed the subject protest, asserting that the bars composed of
a single fruit---apples---should have been classified under subheading
2008.99.0500, 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: Other: Apples", and the bars composed of a mixture of fruits
should have been classified under 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".

Merchandise is classifiable under the HTSUSA in accordance with the
General Rules of Interpretation (GRIs). The systematic detail of the
HTSUSA 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.

The 2005 HTSUSA provisions under consideration are as follows:

2008 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:

10. In airtight containers and not containing

> apricots, citrus fruits, peaches or pears
>
> \* \* \*

1040. Other.....

```{=html}
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90. Other

> \* \* \*
>
> Other:
>
> \* \* \*

9094. Other.....

\* \* \*

99. Other:

2008.99.0500 Apples.....

The protestant, relying on the decision in NY L81447, has asserted that
the bars composed of a single fruit---apples---should have been
classified under subheading 2008.99.0500, HTSUSA, and that the bars
composed of a mixture of fruits should have been classified under
subheading 2008.92.1040, HTSUSA.

Sun-Rype Products, Ltd. was also the manufacturer of the fruit bar
products that were the subject of NY L81447. The products in that ruling
were described as:

> \[F\]lat, rectangular-shaped snackfoods measuring 4 x 1.5 x 1/8
> inches. All contain apple puree concentrate, apple juice concentrate,
> citrus pectin, natural flavor, ascorbic acid, and lemon juice
> concentrate. Depending upon flavor the fruit bars may contain cherry
> juice concentrate, wildberry concentrate, elderberry juice
> concentrate, pineapple juice concentrate, orange juice concentrate,
> strawberry puree concentrate, grape puree concentrate, grape juice
> concentrate, and raspberry puree concentrate. The ingredients are
> mixed, sterilized, and extruded onto a drying/cooling belt. The dried
> product is cut and packaged for retail sale in laminated plastic
> sleeves containing from 0.5 to 1.42 ounces, net weight.

Although the merchandise in NY L81447 and the subject merchandise were
both manufactured by Sun-Rype Products, Ltd., it is not clear whether
they are one and the same, due to the limited product information
available to us.

Protests against a decision of the appropriate CBP Officer must be in
conformity with applicable statutory and regulatory requirements. Under
19 U.S.C. 1514(c)(1), a protest of a decision under subsection (a) of
section 1514 must set forth distinctly and specifically each decision as
to which protest is made. [See]{.underline}, [United States v. E.H.
Bailey & Co.]{.underline}, 32 CCPA 89, C.A.D. 291 (1945), [United States
v. Parksmith Corp.]{.underline}, 514 F. 2d 1052, 62 CCPA 76 (1975), and
related cases. Further, the CBP regulations require that a protest set
forth a [specific description]{.underline} of the merchandise affected
by the decision as to which protest is made. 19 U.S.C. § 1514 and
section 174.13(a)(5), CBP regulations (19 CFR § 174.13(a)(5)).

The scope of review in a protest filed under 19 U.S.C. § 1514 is limited
to the administrative record. CBP will consider all relevant allegations
that are supported by competent evidence. In acting on a protest,
however, CBP lacks the legal authority to assume facts and arguments
that are not presented and, therefore, not in the official record. See
HQ W967259, dated February 28, 2006. In the instant protest, the
protestant has failed to provide information with regard to the
ingredient composition of the subject merchandise. Though the protestant
relies on NY L81447 in support of its position, we note that the
ingredient composition of the merchandise under protest has not been
provided.

Due to the lack of factual specificity for the subject merchandise, we
are unable to determine its classification, and must deny the protest.
See 19 CFR 174.13(a)(5). The port should liquidate the entry on the
basis of the best information available to it.

**HOLDING:**

Based on the protestant's failure to comply with the requirements of 19
U.S.C. § 1514 and 19 CFR § 174.13(a)(5), the protest should be DENIED.

In accordance with the Protest/Petition Processing Handbook (HB
3500-08A, December 2007, pp. 24 and 26), 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
International Trade 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

Commercial and Trade Facilitation Division