HQ 086017: Decision on Internal Advice 52/89, classification of processed bananas, imported by Chiquita Brands, Inc.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                       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











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            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.















                                         - 3 -


                 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














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            "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
                                        Commercial Rulings Division