CLA-2 RR:CR:GC 962981K
963231K
Port Director
U.S. Customs Service
9901 South Cage Street
Pharr, Texas 78577
RE: Protests 2304-98-100148 and 2304-99-100224; Broccoli; MarBran
Dear Port Director:
The following is our response to the referrals by your office, dated July 19, 1999, and September 16, 1999, of the requests for further review of the above-referenced protests.
FACTS:
The consumption entries covering the imported merchandise were liquidated under the provision for other edible brassicas, fresh or chilled, including sprouting broccoli (Brassica oleracea var. italica), in subheading 0704.90.4020, Harmonized Tariff Schedule of the United States (HTSUS) (1997), and with special rates of duty, in subheadings 9906.07.19-9906.07.21, depending upon the period when entered, for applicable goods of Mexico, under General Note 12. Timely protests were received under 19 U.S.C. 1514. The protestant requested reliquidations of the entries under the provision for other fresh or chilled cauliflower and headed broccoli (Brassica oleracea var. botrytis), cut sliced or otherwise reduced in size, in subheading 0704.10.60, HTSUS, with special free rates of duty for goods of Mexico under General Note 12.
A foreign invoice describes the vegetable as “Bolsas Conteniendo Broccoli Fresco Brassica Oleracea Botrytis Group” and as fresh broccoli. Technical information was submitted describing the differences between broccoli of the Brassica oleracea var. botrytis and broccoli of the Brassica oleracea var. italica. The protestant claims that the vegetable imported is of the botrytis variety. Two photos were submitted at a meeting on February 1, 2000 depicting the vegetable as an example of the vegetable as imported.
ISSUE:
Whether the vegetable is classified as fresh or chilled cauliflower and headed broccoli (Brassica oleracea var. botrytis), in subheading 0704.10.60, HTSUS, or as other (including sprouting broccoli ((Brassica oleracea var. italica)), in subheading 0704.90.4020, HTSUS.
LAW AND ANALYSIS:
The classification of imported merchandise under the HTSUS is governed by the principles set forth in the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section and chapter notes and, unless otherwise required, according to the remaining GRI’s, taken in their appropriate order. The vegetable in this case is classified by virtue of GRI 1 depending on a factual determination whether the vegetable is of the Brassica oleracea botrytis or the Brassica oleracea italica variety. The applicable heading and subheadings of the HTSUS (1997) are as follows.
0704 Cabbages, cauliflower, kohlrabi, kale and similar edible brassicas, fresh or
chilled:
0704.10 Cauliflower and headed broccoli (Brassica oleracea var. botrytis):
General Rate Special Rate
0704.10.20 00 If entered during the period from
June 5 to October 15, inclusive,
in any year..............................….... 4% Free (A,E,IL,J,MX)
0.5% (CA)
Other:
0704.10.40 00 Not reduced in size....… …
0704.10.60 00 Cut, sliced or otherwise
reduced in size..........……… 15.8% Free (A,E,IL,J)
1.7% (CA) 7% (MX)
0704.20.00 00 Brussels sprouts………………….
0704.90 Other (including sprouting broccoli
(Brassica oleracea var. italica)):
0704.90.20 00 Cabbage..................................
0704.90.40 Other.................................... 22.5% Free (A+,E,IL,J)
2.5% (CA) 1/
See 9906.07.19-
9906.07.22 (MX)
20 Broccoli............................
40 Other...............................
Goods of Mexico, under general note 12 of the tariff schedule,
Provided for in subheading 0704.90.40:
Sprouting broccoli:
9906.07.19 If entered during the period from January 1 to
May 31, inclusive, in any year......... 18.3% (MX)
9906.07.20 If entered during the period from June 1 to
December 31, inclusive, in any year......... 5% (MX)
Other:
9906.07.21 If entered during the period from January 1 to
May 31, inclusive, or the period from
November 1 to December 31, inclusive,
in any year......…….. 5% (MX)
9906.07.22 If entered during the period from June 1 to
October 31, inclusive, in any year…….. Free (MX)
This issue was the subject of Headquarters Ruling Letter (HRL) 957504, dated April 17, 1995 (and affirmed in HRL961857, dated April 15, 1999), in which we stated in the Law and Analysis caption as follows.
A review of the technical authorities reveals that in the United States the common type of broccoli marketed is the Brassica oleracea var. (Italica group): Sprouting broccoli. The other type: Brassica oleracea var. (Botrytis group) is distinguished by its tight head, and its resemblance to a cauliflower. A photograph of a stalk of the type imported resembles the sprouting broccoli: a long stalk, topped by a branching head of bud clusters (also known as Calabrese); a head of functional florets at the end of each main branch. In contrast, the headed or botrytis variety is often described as a round, tight, short stalked, with tight flower clusters; a compacted head more resembling cauliflower. The two types are also differently packaged, with the Italica group being banded together by rubber bands about the stocks; while the headed broccoli, lacking the requisite stalks, is not bunched together. None of the importer’s evidence refutes the conclusion reached here concerning the nature of the import.
The protestant also cites the above, in part, but opines that its imported broccoli is different than the broccoli in HRL 957504, that it’s broccoli more closely resembles cauliflower, that the assumption that the common type of broccoli marketed in the United States is of the Italica variety is not correct and suggests it is a home gardening type rather than commercial broccoli, and that the Customs Service disputed the U.S. Department of Agriculture (USDA) classification scheme and standards of grades.
The publication Fruit & Vegetable Facts & Pointers (1971), of the United Fresh Fruit and Vegetable Association dealing with marketing broccoli in fresh form states that
The term “broccoli” as generally used refers to sprouting broccoli rather than heading broccoli, which can hardly be distinguished from cauliflower. Sprouting broccoli is classified botanically as Brassica oleracea (Italica group) to distinguish it from cauliflower which is Brassica oleracea (Botrytis group). ...
There has long been confusion and disagreement on the classification of broccoli and cauliflower….
In growth, sprouting broccoli resembles cauliflower…. The plant forms a head
consisting of green buds and thick, fleshy flower stalks. The heads are looser than those of cauliflower and generally green-colored, and the flower stalks are longer….[and agrees ] … with USDA experts that the term “broccoli” be used only to refer to sprouting broccoli, and that is what is done here.
At page 70, The Packer, 1999 Produce Availability & Merchandising Guide,
states that for broccoli “calabrese is the chief commercial broccoli variety” and lists the total U.S. imports by individual countries including Mexico. The source for the imports is indicated as the USDA.
HRL 957504 refers to a statement submitted by the importer from a research horticulturist with the U.S. Department of Agriculture in which he merely cited technical differences between the varieties. The USDA standards were not cited and the horticulturist did not state any opinion concerning the classification of the imported broccoli. We are of the opinion that the USDA standards support the Customs position.
The USDA standards for grades of fresh and frozen cauliflower and bunched Italian sprouting broccoli have been removed from Title 7, Code of Federal Regulations (CFR), but are still in effect. The standards are found in the former regulations as follows;
Fresh cauliflower, sections 51.540-51.556 (removed in 1995).
Frozen cauliflower, sections 52.721-52.729 (removed in 1997)
Fresh bunched Italian sprouting broccoli, sections 51-3555-51.3573 (removed in 1995)
Frozen bunched Italian sprouting broccoli, sections 52.631-52.652 (removed in 1995).
None of the above standards refers to or recognizes headed broccoli (Brassica oleracea var. botrytis) which confirms the statement in the publication Fruit & Vegetable Facts & Pointers (1971), of the United Fresh Fruit and Vegetable Association, that USDA experts agree that term “broccoli” should “ be used only to refer to sprouting broccoli”.
Frozen broccoli is defined in the former 7 CFR 52.631 as the “product prepared from the fresh, clean, sound stalks or shoots of the broccoli plant (Brassica oleracea Italica group] by…. Section 52.635(b) (2) refers to “good color” at the top of the head as a bright, distinct green.
Frozen cauliflower is defined in the former 7 CFR 52.721 as “prepared from fresh flower heads of the cauliflower plant (Brassica oleracea botrytis) by…. The standard does not specifically describe the color of the vegetable but section 52.724(f)((1) defines a minor color defect as meaning “that after cooking, the cluster possesses a color that is more than slightly darker than light cream to dark cream.
The standards for fresh bunched Italian sprouting broccoli (7 CFR 51.3555-51-3573) do not specifically define the product but technical information
above states that bunched Italian sprouting broccoli belongs to the Brassica oleracea Italica group, and the standards for the frozen broccoli specifically state that it does. Section 51.3564(b), in describing color defects, states that “discoloration of bud clusters (is), when the appearance of the bunch is materially affected by the buds which have a noticeably yellowish, brownish or reddish cast in contrast to the desirable good green …..” Thus, like the standards for frozen broccoli, the buds have a distinct green color unless there is discoloring due to overmaturity.
Section 51.540(a)(3) of the standards for fresh cauliflower describes the color for cauliflower as “white, creamy white, or cream”. Further, in defining one of the damages of the vegetable, section 51.530(b) states that “discoloring (is) when the appearance of the unit is materially affected by yellowing or any other type of discoloring”.
Obviously, bunched Italian sprouting broccoli has a distinct green color and cauliflower has a white, creamy white, or cream color. No technical information has been submitted to establish the distinct color of headed broccoli (Brassica oleracea var. botrytis. No technical information has been submitted to distinguish the differences, if any, between cauliflower (Brassica oleracea var. botrytis) and headed broccoli (Brassica oleracea var. botrytis).
The colored photo referred to in HRL 957504, depicts a vegetable of a distinct green color and meets the commercial and USDA descriptions of Italian sprouting broccoli. The photos submitted by counsel representing the protestant on February 1, 2000, in our opinion, depict Italian sprouting broccoli. The protestant has not indicated whether or not the USDA was requested to grade the imported broccoli subject to the protest. Based on the above, we suggest that the USDA would have applied the standards for Italian sprouting broccoli rather than for cauliflower.
We are satisfied, based on all of the available information, that we have considered the commercial and USDA standards in determining that the vegetable consists of Italian sprouting broccoli (Brassica oleracea var. Italica).
HOLDING:
The vegetable as described above is classified as other edible brassicas, fresh or
chilled, including sprouting broccoli (Brassica oleracea var. italica), in subheading 0704.90.4020, HTSUS (1997), and as goods of Mexico under General Note 12, in subheadings 9906.07.19-9906.07.22.
HRL 957504, dated April 17, 1995, is affirmed.
You are directed to deny the protests in full.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision and any reliquidations of entries in accordance with this decision must be accomplished prior thereto.
Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel, and to the general
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 public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division