CLA-2 CO:R:C:F 088706 ALS
District Director of Customs
Lincoln Juarez Bridge, Bldg. #2
P.O. Box 3130
Laredo, Texas 78044-3130
RE: Request for Further Review of Protests 2303-90-000016 and
2303-90-000017, Dated November 7, 1990, Concerning Avocado Pulp
in Oil
Dear Mr. Castellano:
This ruling is on a protest that was filed against your
decisions in the liquidations of August 10, 1990, covering 25
entries of the subject commodity.
FACTS:
The product involved in these protests is avocados which are
initially washed in one bleach bath and one vinegar bath. They
are then peeled, quartered, de-seeded, placed in a six gallon
plastic bucket and covered with vegetable oil and refrigerated.
The filled bucket, which weighs 24 kilograms (kg), is composed of
12 kg of oil and 12 kg of avocados. The product is always kept
refrigerated, precooled, before processing, held at 35-40 degrees
fahrenheit and is shipped in a refrigerated trailer. Subsequent
to importation the oil is removed and vacuum sealed in four pound
packages and sold to restaurants.
ISSUE:
Are avocado pieces immersed in vegetable oil considered to
be provisionally preserved and unsuitable for immediate
consumption and classifiable under subheading 0812.90.9000,
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA)?
- 2 -
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI's) taken in order.
GRI 1 provides that the classification is determined first in
accordance with the terms of the headings and any relative
section and chapter notes. If GRI 1 fails to classify the goods,
and if the heading and legal notes do not otherwise require, the
remaining GRI's are applied, taken in order.
In reviewing the heading eligible for classification of the
commodity, we concluded that the product could not be classified
under Heading 0804, Harmonized Tariff Schedule of the United
States (HTSUS), since it had undergone several processes and was
no longer fresh fruit. We noted other competing headings under
which the commodity could be classified depending on whether or
not it was provisionally preserved. Heading 0812, HTSUS, as
claimed by the protestant, provides for fruit and nuts,
provisionally preserved (for example, by sulphur dioxide gas, in
brine, in sulfur water or in other preservative solutions), but
unsuitable in that state for immediate consumption. Heading
2008, HTSUS, as liquidated, provides for Fruit, nuts and other
edible parts of plants, otherwise prepared or preserved.
In considering the nature of provisional preservation, we
found that it is a temporary form of preservation, intended to
retard spoilage for only a short period of time, generally for
purposes of transportation. According to the wording of Heading
0812, HTSUS, and the Explanatory Notes to the Harmonized System,
provisional preservation is accomplished by subjecting the fruit
to exposure to or immersion in a preservative substance or
medium. Such fruit is inedible and unsuitable for immediate
consumption prior to the removal of the preserving medium.
Counsel for the importer suggests that the purpose of
placing the avocado, which has been partially processed, in
winterized vegetable oil is to provisionally preserve it during
shipping. He contrasts this to a commodity which may be
considered to be fully preserved and which may indefinitely
remain unchanged. Since counsel for the importer suggests that
the avocado is provisionally preserved because it is immersed in
oil, we considered the purpose for such immersion. In this
regard, we noted that avocado pulp, which is very soft, turns
brown or black upon exposure to air. While the darkening of the
fruit does not alter its taste or palatability, it does make it - 3 -
unsightly. The darkening is part of the spoilage process. The
oil in which the avocado is immersed during shipment keeps the
fruit from exposure to the air, with the resultant spoilage. It
also acts in the nature of a shock absorber to prevent the fruit
from being crushed during shipment.
Industry sources have confirmed that the purpose of covering
the avocado with oil is prevent discoloration. Such sources
indicated that oil does not retard the ripening process and that
this can only be done by lowering the temperature in the
environment in which the fruit is kept. These sources indicate
that refrigeration at temperatures of 35 to 40 degrees marginally
slows down the ripening processing for a short period of time.
Freezing is the process utilized to retard the ripening process
and to prolong the shelf life of the avocado. It permits a
relatively long shelf life.
In analyzing the facts in this case, we noted, as
previously stated, that we are dealing with fresh avocado which
has been partially prepared by peeling, quartering, se-seeding,
etc. We noted that the purpose of immersing the avocado in the
vegetable oil is to prevent discoloration and not to
provisionally preserve the fruit as stated by counsel. While
refrigeration does slow down the ripening process, it is only
marginally effective in doing so. Refrigeration as such does not
alter the classification of the product. In accordance with
Legal Note 2 to Chapter 8, the product would be classified in the
same heading as corresponding fresh fruits and nuts were it not
for the processing that the fruit undergoes prior to importation.
In this case, we are dealing with avocado which has been
partially prepared by peeling, quartering, de-seeding, etc. We
believe that the processing, as previously noted, takes the
product out of the provisions for fresh fruit, and brings it
within the purview of Chapter 20 of the Harmonized System since,
as we already concluded, it is not provisionally preserved.
HOLDING:
The entered article is properly classifiable under
subheading 2008.99.1000, HTSUSA, and is dutiable at a general
rate of 13.2›/kg. The protest should be denied.
- 4 -
A copy of this decision should be attached to your Form 19,
Notice of Action, to be sent to the protestant.
Sincerely
John Durant, Director
Commercial Rulings Division