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HQ 088706




July 15, 1991

CLA-2 CO:R:C:F 088706 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 2008.99.1000

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

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.

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


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