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HQ 965536




September 13, 2002

CLA-2 RR:CR:GC 965536 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 0709.52.00; 0710.80.70; 9903.02.32

Area Director
U.S. Customs Service
JFK Airport, Building 77
Jamaica, NY 11430

RE: Internal Advice 07/02; Truffles from Italy and China

Dear Area Director:

This is in response to your memorandum of March 19, 2002 (ENF-14 K:TO:A3 BB) forwarding Internal Advice Request 07/02, dated December 12, 2001 and February 26, 2002, initiated by counsel on behalf of Sabatino Tartoufi, Inc., requesting advice as to whether truffles subjected to a packing process known as "Modified Atmospheric Packaging" (MAP) are prepared or preserved for purposes of classification under the Harmonized Tariff Schedule of the United States (HTSUS).

These articles are the subject of current transactions. All were imported at the JFK Airport in refrigerated condition with the following exception: the articles that constitute entry #H77-XXXX951-6 were imported in frozen condition. Samples were retained at JFK Airport, Jamaica, New York. All were of Italian origin except those in entry #H77-XXXX877-5, which were of Chinese origin.

FACTS:

Fresh truffles are harvested from the ground, cleaned, dried, and placed in specialized plastic envelopes. The envelopes are then placed in a machine which flushes the air, removing 78% nitrogen, 21% oxygen and 1% carbon dioxide, and substitutes a new environment of 80% nitrogen and 20% carbon dioxide. Then the bags are sealed and the product is refrigerated. The bags are clear plastic enabling the retail purchaser to examine the product before buying it.

Counsel for Sabatino Tartoufi, Inc., has submitted the opinion of a professor from an Italian university regarding the extension of shelf life provided by "MAP" methods of packing. The opinion notes that the creation of a modified atmosphere of oxygen, nitrogen and carbon dioxide combined with chilling can prolong the shelf life of truffles from 6 to 8 months. The bags used for the Italian study were opaque to protect against the deterioration effects of light.

ISSUE:

Whether the fresh or chilled truffles put up in modified atmosphere packaging (MAP) are prepared or preserved for tariff purposes, or remain in chapter 7 as fresh or chilled.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The port issued 16 notices of proposed action (CF29) on October 9, 2001, indicating that all the truffles were classified in subheading 0709.52.00, HTSUS.

Counsel for the importer argues that under GRI 1, the correct classification is subheading 2003.20.00, HTSUS, the provision for "Mushrooms and truffles, prepared or preserved otherwise than by vinegar or acetic acid: Truffles."

This office must determine whether the modification of the atmosphere of the packaging of the actual products imported constitutes a preparation or preservation which would compel classification in Chapter 20, HTSUS. Conversely, has the packaging subjected the truffles to a sufficient processing to force classification outside of the chapter 7 "fresh truffles" provision into a provision for prepared or preserved truffles of Chapter 20?

The internal advice requestor claims that the potential longer shelf life of the product is sufficient to demonstrate that the product has been "preserved." While the MAP process appears to be a technological advance with applications that will benefit the fresh food industry, that is not the issue for tariff classification purposes. A more germane question would be what process has been performed on the product to take it beyond fresh or chilled. In the case of the MAP truffles, no chemical preservatives have been applied to the vegetable. The vegetables are suitable for consumption as imported, as the MAP does not affect their palatability. The only other process the truffles have been subjected to is reduction in temperature, refrigeration in most cases, freezing in one, and both are permitted processes for goods classified in Chapter 7, HTSUS.

The general ENs to Chapter 7 state that:

. . . vegetables of this Chapter remain classified here even if put up in airtight containers (e.g., onion flour in cans). In most cases, however, products put up in these packing have been prepared or preserved otherwise than as provided for in the heading of this Chapter, and are therefore excluded (Chapter 20).

This statement suggests that the mere changing of the atmosphere is not a process that would remove the classification from Chapter 7 into Chapter 20. We would further note that in the tangential manner in which the MAP has been considered in Headquarters Ruling Letters (HQ), the MAP has not affected the tariff classification. See HQ 733798, dated April 11, 1991 (tomatoes deemed unchanged by controlled atmosphere packaging for determining country of origin marking), and HQ 950845 dated June 26, 1992, in which a cryovac bag with modified nitrogen atmosphere was not sufficient to remove the classification of a mixture of nuts and raisins from Chapter 8 to Chapter 20.

MAP may have been uncommon or not fully developed at the time the ENs were prepared. It does appear from the portion cited supra that there is no clear prohibition against including MAP in the "fruits and vegetables" provisions of Chapter 7 and 8. The tariff classification was considered for MAP strawberries at the 28th session of the Harmonized System Committee (HSC) of the World Customs Organization in November 2001. While the decisions are not binding on the United States, we note that the committee unanimously agreed that the MAP fruit was classified in Chapter 8, rather than in Chapter 20, HTSUS. See HSC documents NC0494E1 and NC0532E1. The decision led to proposed amendments to the general ENs for Chapters 2, 3, 7, and 8 regarding the effect of MAP. Annex to HSC document NC0532B1, February 28, 2002. The amendments were adopted May 28, 2002 without substantive changes. The amendment pertaining to Chapter 7 is as follows:

Similarly, products of this Chapter [7] remain classified here (e.g., fresh or chilled vegetables) when subjected to packaging by means of a Modified Atmospheric Packaging (MAP) process. In a MAP process the atmosphere surrounding the product is altered or controlled (e.g., by removing or reducing the oxygen content and replacing it with or increasing the nitrogen or carbon dioxide content).

This amendment to the ENs merely confirms Customs consistent understanding that MAP, alone, is not sufficient to change the classification from "fresh or chilled" in the language of heading 0709, HTSUS, to "prepared or preserved" in the language of heading 2003, HTSUS.

The MAP truffles are classified in subheading 0709.52.00, HTSUS, and are also subject to the sanctions provided for products of Italy in subheading 9903.02.32, HTSUS. The Chinese truffles are, likewise, classified in subheading 0709.52.00, HTSUS, but are not subject to the sanctions. The MAP truffles imported in frozen condition are classified as other frozen vegetables, not reduced in size, in subheading 0710.80.70, HTSUS.

HOLDING:

The Italian and Chinese origin MAP truffles are classifiable at subheading 0709.52.00, HTSUS, as "Other vegetables, fresh or chilled: Mushrooms and truffles: Truffles." The Italian products are also subject to the provisions of subheading 9903.02.32, HTSUS as products of Italy.

The frozen MAP truffles are classified in subheading 0710.80.70, HTSUS, in the provision for "Vegetables (uncooked or cooked by steaming by boiling in water), frozen: Other vegetables: Other: Not reduced in size: Other, Other."

This decision should be mailed by your office to the party requesting internal advice no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director

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