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HQ 086017


May 9, 1990

CLA-2 CO:R:C:G 086017 JGH

CATEGORY: CLASSIFICATION

TARIFF NO.: 152.72; 2008.99.13

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
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.

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

"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

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