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HQ 965850




November 14, 2002

CLA-2 RR:CR:GC 965850ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 0709.60.20

Port Director
U.S. Customs Service
797 S, Saragosa Road
El Paso, TX 79907

RE: Protest 2402-02-1000056; Red Cayenne Peppers.

Dear Port Director:

The following is our decision in Protest 2402-02-1000056, filed on behalf of IMA Trading, Inc., against your classification of a product referred to as red cayenne peppers under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The goods under protest were entered on March 7, 2002, as entry AF4-xxxx5496, and were classified by the importer under subheading 0904.20.6090, HTSUS, eligible for preferential treatment under the NAFTA. The goods are described by protestant as "crushed" cayenne peppers. The goods are essentially fresh peppers that have been tightly packed in wooden or plastic crates. Some of the peppers are randomly sliced so that more peppers can be packed into the crates. Protestant has submitted photographs of the goods which show that although some have been sliced, the majority still retain the physical attributes of whole, fresh peppers.

The entry was liquidated on May 3, 2002, and Customs classified the goods in subheading 0709.60.2000, HTSUS, which provides for: other vegetables, fresh or chilled, fruits of the genus Capsicum (peppers) chili peppers. A protest of the liquidation under this classification was timely filed on June 25, 2002.

ISSUE:

What is the classification of fresh cayenne peppers that have been tightly packed in packing crates?

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). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied in order.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS subheadings under consideration are as follows:

0709 Other vegetables, fresh or chilled:

0709.60 Fruits of the genus Capsicum (peppers) or of the genus Pimenta (e.g., allspice):

0709.60.2000 Chili peppers

0904 Pepper of the genus Piper; dried or crushed or ground fruits of the genus Capsicum (peppers) or of the genus Pimenta (e.g., allspice):

0904.20 Fruits of the genus Capsicum or of the genus Pimenta (including allspice), dried or crushed or ground: Of the genus Capsicum (including cayenne pepper, paprika and red pepper):

Other
0904.20.60 Not ground
0904.20.6090 Other

The definition of the word "crushed" is central to resolution of this protest. Protestant claims that the selected slicing and compressing of its goods into packing crates are sufficient to bring the goods into the scope of "crushed" as used in heading 0904.

In this instance, neither the HTSUS, nor the ENs define the term "crushed". In the absence of a definition of a term in the tariff or the ENs, the term's correct meaning is its common and commercial meaning. The meaning of a term may be ascertained from lexicographic authorities. (See Carl Zeiss v. United States, 195 F3d 1375 (Fed. Cir. 1999)) Since the subject entry was liquidated, additional research on the subject by Customs has produced the following information. The Random House Dictionary of the English Language, Unabridged (1973), page. 349, defines "crush" as: "1. to press with a force that destroys or deforms. 2. To squeeze or pound into small fragments or particles, as ore, stone, etc. 3. To force out by pressing or squeezing; extract: to crush the juice from an orange. ." Suggested synonyms are "1. Crumple, rumple. 2. Shatter, pulverize, granulate, powder, mash, crumple."

A page from an unidentified dictionary supplied by protestant defines "crush" as; "1. To press between opposing bodies so as to break or injure. 2. To extract or obtain by pressing or squeezing: crush juice from a grape. 3. To crumple or rumple. 5. To break, pound or grind (stone or ore, for example) into small fragments or powder. 6. To press upon, shove or crowd. "

Both of these dictionary definitions of "crush" contain the requirement that there be a deliberate application of pressure or force to an article with the purpose of destroying it by drastically altering its shape or condition. That has not taken place in this instance. The cayenne peppers at issue have been tightly packed into transport containers. Some of them have been cut to decrease air spaces between peppers so that more peppers can be packed into the containers. However, photographs provided by protestant show that the vast majority of the peppers retain the shape and configuration of fresh peppers. They have not been subjected to any uniform force which is intended to destroy the original structure of the peppers. While some of the peppers may have been reduced in size by being packed into the crates and pressed by succeeding layers of peppers placed on top, they have not been "crushed" to the extent contemplated by the tariff. In order for a product to become "crushed" within the context to heading 0904, the individual product needs to have lost its identity in the mass which results from the deliberate application of intense pressure. The protestant's goods have not undergone sufficient processing to be eligible for classification as crushed in heading 0904, HTSUS.

As further support for not considering the peppers to have been crushed, we note that the invoice accompanying the shipment described the goods as "quebrado." According to The New Velázquez Spanish and English Dictionary, (1999), "quebrado" means "broken" p 731). The Spanish word conveying the meaning "crush" is "aplastar" (p 261). The past tense, "crushed," is the word "aplastado."

HOLDING:

Chili cayenne peppers which have been randomly sliced and dumped into bulk shipping containers are classified in subheading 0709.60.20, HTSUS, which provides for other vegetables, fresh or chilled: fruits of the genus Capsicum (peppers) or of the genus Pimenta (e.g., allspice): Chili peppers.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, 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.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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