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HQ 967888




November 14, 2005

CLA-2 RR:CTF:TCM 967888 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 2005.70.9700

Mr. Vicent Arguimbau
Kiwi Trading Company
4 Davenport Avenue
P.O. Box 632
Greenwich, CT 06836-0632

RE: Reconsideration of NY I80930; classification of prepared olives from Morocco

Dear Mr. Arguimbau:

This is in reply to your letter dated August 25, 2005 to the National Commodity Specialist Division (“NCSD”) requesting reconsideration of New York Ruling Letter (NY) I80930, dated May 10, 2002. You supplemented your request with another letter dated August 29, 2005.

In NY I80930, U.S. Customs and Border Protection (“CBP”) classified prepared from olives from Morocco in subheading 2005.70.9700, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), which provides for: “Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006: Olives: Otherwise prepared or preserved: Other.”

Pursuant to your request, we have reviewed NY I80930. This ruling, HQ 967888, affirms the holding in NY I80930.

FACTS:

In NY I80930, the olives at issue were described as “ tree ripe black olives immersed in caustic solution, rinsed and packed dry in a drum with salt.” You stated that the olives are sold to repackers, specialty food processors, and distributors.

The olives that were the subject of NY I80930 were from Morocco and imported in drums. In your August 29, 2005 letter, you state that the olives may also be imported from Turkey, Greece and Argentina and you suggest that they will be imported in 5-kilogram plastic bags. You also state that the olives will be repacked and resold in the United States. You assert that the olives are classifiable under subheading 0712.90.2000, HTSUSA, which provides for: “Dried vegetables, whole, cut, sliced, broken or in powder, but not further prepared: Other vegetables; mixtures of vegetables: Olives: Ripe.”

Additionally, in your August 29, 2005 letter, you state that you no longer believe that the olives at issue are classifiable in subheading 2005.70.7500, HTSUSA, (your assertion in your August 25, 2005 letter) because the olives are not in a saline solution.

ISSUE:

What is the classification of the olives at issue?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." If 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 GRI may then be applied, in order.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

Heading 0712, HTSUSA, covers “Dried vegetables, whole, cut, sliced, broken or in powder, but not further prepared.” Note 3 to Chapter 7 states that heading 0712, HTSUSA, with certain exceptions, covers all dried vegetables falling in headings 0701 to 0711.” The EN to heading 0712 state that:

This heading covers vegetables of headings 07.01 to 07.09 which have been dried (including dehydrated, evaporated or freeze-dried) i.e., with their natural water content removed by various processes. The principal kinds of vegetables treated in this way are potatoes, onions, mushrooms, wood ears , jelly fungi , truffles, carrots, cabbage and spinach. They are usually prepared in strips or slices, either of one variety or mixed .

The heading also covers dried vegetables, broken or powdered, such as asparagus, cauliflower, parsley, chervil, onion, garlic, celery, generally used either as flavouring materials or in the preparation of soups.

The olives at issue have not been dried. Rather, they have been treated with lye, rinsed and packed dry in salt (salt cured) in drums or plastic bags. These actions leave the olives in a processed or preserved state, not dried.

Lye treatment alone of a vegetable is considered a special treatment that results in the classification of the vegetable in Chapter 20, HTSUSA. See the EN to heading 07.11. In this case, the lye treatment is used, in conjunction with the salt curing, to debitter the black olives.

You assert that the olives at issue are classified under subheading 0712.90.2000, HTSUSA. However, after the lye treatment, the olives are no longer goods of heading 0709, HTSUSA (which covers fresh olives). As a result, the olives cannot be classified in heading 0712, HTSUSA, when further prepared because the heading covers fresh vegetables that have been dried.

You are correct in your belief that the olives cannot be classified in subheading 2005.70.7500, HTSUSA, because they are not in a saline solution. Subheading 2005.70.7500, HTSUSA, provides only for olives that are in a saline solution, that are not green in color, that are not canned, and that are not in airtight containers of glass or metal. As the olives at issue are imported “packed dry” with salt in drums or 5-kilogram plastic bags, they do not fall within the scope of the provision.

HOLDING:

The olives at issue are classified in subheading 2005.70.9700, HTSUSA, which provides for: “Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006: Olives: Otherwise prepared or preserved: Other.” The applicable column one, general duty rate under the 2005 HTSUSA is 8.8¢/kg on drained weight. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the world wide web at www.usitc.gov.

EFFECT ON OTHER RULINGS:

NY I80930, dated May 10, 2002, is affirmed.

Sincerely,

Myles B. Harmon, Director

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