CLA-2 CO:R:C:G 086017 JGH
Mr. David L. Willette
District Director of Customs
U.S. Customs Service
150 North Royal, Suite 3004
P.O. Box 2748
Mobile, Alabama 36652
Re: Decision on Internal Advice 52/89, classification of
processed bananas, imported by Chiquita Brands, Inc.
Dear Sir:
FACTS:
The bananas are said to be processed by peeling ripe
bananas, mashing the fruit, running the mashed fruit through a
homogenizer, then into a deaerator, and, finally, pasteurizing
the preparation to ensure commercial sterility. Pasteurization
is said to consist of the bananas being heated in a pressurized
system to kill microorganisms, without affecting the quality of
the fruit, as boiling or steaming would do. Following
pasteurization the bananas preparation is cooled and put into
sealed containers.
ISSUE:
Whether the prepared bananas are classified under the
provision in the Harmonized Tariff Schedules of the United
States (HTSUS) for banana pulp in subheading 2008.99.1300,
HTSUS, or bananas, otherwise prepared or preserved, in
subheading 2008.99.1500, HTSUS. Since certain entries are
still said to be pending under the Tariff Schedules of the
United States (TSUS), the pertinent tariff item numbers under
the TSUS are also said to be in issue: Item 152.72, TSUS, for
banana pulp and item 146.44, TSUS, for bananas, otherwise
prepared or preserved.
LAW AND ANALYSIS:
Essentially, it is the importer's claim that banana pulp
is that part of the fruit which remains after the seeds or
juice is removed; a residue of solid, fibrous material. Since
the imported banana product does not have any part removed but
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is merely mashed and heated, it cannot for tariff purposes be
considered pulp. A flow sheet submitted reflected that the
processing involves the ripened banana being peeled, mashed,
essence extracted, homogenized and canned. Subsequent to
importation, the canned banana is then pressed and screened,
producing a juice and "fibrous material and pulp." The juice
is shown to be used in the production of concentrated juice,
clarified juice and dehydrated banana powder. Concentrated
banana pulp, puree or pastes are said to be used in the
production of dehydrated banana flakes. No use is shown for
the "fibrous material and pulp." In contrast, the imported
banana product is said to be the whole banana mechanically
processed to a smooth consistency.
In the Explanatory Notes to heading 2007, HTSUS, fruit
purees are said to be prepared by boiling sieved fruit pulp
with or without the addition of sugar to a thick consistency.
The Explanatory Notes to heading 2008 state that sterilized
fruit pulp is included under that heading whether cooked or
not. In the Summary of Trade and Tariff Information, volume 8
of Schedule 1, TSUS (1969), it is stated that "Fruit pulps
(also called purees) are usually prepared by forcing cooked
fruit through an appropriate sized sieve." In the 1983 edition
it was added that fruit pulps are prepared from fresh, frozen,
or canned fruits by various mechanical means, such as grinding
or extruding, which pulverizes the fruit to a homogeneous mass.
In behalf of the importer it is emphasized that it is not
a cooked fruit which has been processed, but one which is
subjected to just enough thermal processing to kill
microorganisms. A statement was included from the Vice
President of Product Development Quality Assurance and Control
of Processed Foods Division of Chiquita Brands, Inc., to the
effect that in the food industry the term "food pulp" is
understood to be the insoluble (solid) portion of the fruit
derived by removing the juice by sieving, pressing,
centrifuging or evaporating techniques. The processed bananas
at issue, he adds, "are not sieved, pressed, centrifuged or
evaporated to obtain the insoluble portion of the fruit."
Furthermore, relying on certain Customs decisions, it is
claimed that for tariff purposes pulp is a residue left after
the fruit has been mechanically sieved, processed or
centrifuged to remove seeds and juice. It is also maintained
that the precedent Customs decisions involving products
classified as a "pulp," concerned fruits which were processed
beyond the stage of the imported product.
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Those decisions involved a variety of fruits which had
been subjected to various types of mechanical processing. The
mangoes in Headquarters Ruling Letter (HRL) 030206 are a much
juicier fruit than the banana, so that the screw press method
of extraction involved would appear to be appropriate for
obtaining the juice. In regard to HRL 020667 the fruits
processed for the various fruit wine bases were said to be
subjected to the fruit being washed, depitted, and ground to a
coarse pulp and then heated for sterilization purposes and
sealing it in cans. A processing remarkably like the one
described here. In any event, it cannot be concluded that the
products in the precedent decisions cited were reduced to being
residues. Rather, the concept of pulp is dependent on the
nature of the fruit.
It is Customs view that fruit pulp is a fruit product
which has been reduced mechanically to a pulpy mass and is not
a residue. It is noted in the Tariff Summary (Schedule 1, Vol.
8) (1969), in discussing the scope of item 146.44, TSUS, and
item 152.72, TSUS, that "[O]therwise prepared or preserved
bananas consist primarily of canned sliced bananas used in pies
and desserts but also include banana chips used for snacks.
Banana and plantain paste or pulp consists almost entirely of
frozen banana puree and canned mashed bananas used in baby
foods, ice creams, pies, cakes, and other baked goods." Thus,
it would appear that the nature of the product has been long
recognized, and that canned mashed bananas are considered pulp.
While it is true that the Summaries do not necessarily
reflect Congressional intent, in the absence of a clearly
stated legislative intent, they do reflect the common meaning
of the term.
Pulp - The succulent part of the fruit. Random House
Dictionary of the English Language.
Banana - The soft, pulpy flesh [of the banana] is enclosed
in a comparatively soft, usually yellow rind. Encyclopedia
Americana.
In a discussion of the "comminution" of fruit for the
purpose of juice production, The Encyclopedia of Chemical
Technology uses the term "pulp" to describe the mass remaining
just after the separation of the pits, cores, rinds, etc. This
mass contains both juice and solid fibrous material. No
further separation has occurred. The article goes on to state
that
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"Many fruit pulps have a mucilaginous character that makes
juice extraction difficult..[and] Fibrous materials are
frequently added to the fruit pulp to facilitate juice
liberation."
The imported product is a pulp which fits these
definitions; it is more of the fruit than just the solid
portion. Thus, for tariff purposes it is recognized that a
mashed banana is a pulp, regardless of whether or not it has
been cooked; it is the meat or flesh of the fruit that is being
considered and not a residue. This is just as true in the
HTSUS as it was in the TSUS.
HOLDING:
Bananas processed in the manner described are classifiable
under the provision for banana pulp, in the HTSUS, in
subheading 2008.99.13, HTSUS, or in the TSUS in item 152.72,
TSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division