**July 23, 2008**

**HQ W968430**

**CLA-2 OT:RR:CTF:TCM** W968430 RM

**CATEGORY:** Classification

**TARIFF NO.:** 0709.52.00; 9903.02.32

Area Director

JFK International Airport, Building 77

United States Customs and Border Protection

Jamaica, NY 11430

Attn: Chief, Liquidation and Protest Branch

**RE:** Truffles; Application for Further Review of Protest No.
4701-05-100658

Dear Area Director:

The following is our decision regarding the Application for Further
Review ("AFR") of Protest No. 4701-05-100658, timely filed by counsel on
behalf of Universe Holding Corporation, concerning the classification of
truffles under the Harmonized Tariff Schedule of the United States
("HTSUS").

**FACTS:**

This Protest concerns seven entries of truffles imported from Italy on
various dates between May 5, 2004, and May 2, 2005, described in the
entry documents as "black summer truffle oz. 7.7 drained oz. 7 (in
can)," and entered under subheading 2003.20.00, HTSUS, as preserved
truffles.

Protestant states that the truffles were harvested in Umbria, Italy,
during the 2004 harvesting season for black summer truffles, June 1 to
August 31. He describes the manner in which the truffles were processed
as follows:

> All the truffles and truffle products covered by this Protest were
> processed in the following manner:
>
> After the harvesting, the truffles are washed and frozen. The truffles
> are then thawed, washed again, and boiled in water for one hour at 221
> degrees Fahrenheit with salt and aroma. Products imported as "whole
> truffles" are placed in whole pieces in jars or tin cans with truffle
> juice (salt and water) ... The jars and tin cans are then placed in
> steam autoclaves and sterilized at 259 degrees Fahrenheit for a period
> of ... 79 minutes (cans).

In the course of a routine examination of one of the shipments of which
the protested entries were a part, a U.S. Customs and Border Protection
("CBP") Agriculture Specialist at JFK Airport discovered that a certain
entry of "preserved" truffles lacked a liquid preserving medium
(traditionally present in cans of preserved truffles). As a part of the
examination, CBP compared the gross weight of the shipment to what it
would have weighed had it been loaded with liquid-filled cans. The
sample shipment weighed 44kg. After weighing airtight cans from that
shipment (actual weight 7.4 oz each) and comparing the weight of those
cans with ones filled with liquid that were acquired from the importer's
warehouse (actual weight 14.6 oz), CBP determined that, had the 180 cans
in that shipment contained liquid, the cans alone (without the truffles
or any other packing) would have weighed 75 kg. In light of this weight
discrepancy, CBP classified all unliquidated entries as fresh truffles
under subheading 0709.52, HTSUS, which is subject to 100 percent duty
under subheading 9903.02.32, HTSUS. The entries were liquidated between
June 10 and August 26, 2005.

Protestant's explanation at the time of the examination was that the
cans of truffles without liquid were imported in error; they were
intended for Japan and not for the United States. Subsequently, in a
February 20, 2006, letter, Protestant's counsel explained that the wrong
invoice was submitted in support of that entry. However, documentation
supporting either explanation was never provided to CBP.

**ISSUES:**

1.  Are the subject imports properly classified as fresh truffles under
    subheading 0709.52.00, HTSUS, or as preserved truffles under
    2003.20.00, HTSUS?

2.  Was CBP justified in issuing a rate advance for all unliquidated
    entries based on an examination of a sample from one?

**LAW AND ANALYSIS:**

Initially, we note that the matter is protestable under 19 U.S.C. §
1514(a)(2) as a decision on classification. The Protest was timely
filed, within 180 days of liquidation for all involved entries
(Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L.
108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. §
1514(c)(3) (2006)).

Further Review of Protest No. 4701-05-100658 was properly accorded to
Protestant pursuant to 19 C.F.R. § 174.24(a) because the decision
against which the Protest was filed is alleged to be inconsistent with a
ruling of the Commissioner of Customs or his designee, or with a
decision made at any port with respect to substantially similar
merchandise.

Classification under the HTSUS is made in accordance with the General
Rules of Interpretation (GRIs). GRI 1 provides that the classification
of goods shall be determined 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 2 through 6 may then be applied in order.

The HTSUS headings under consideration are as follows:

0709 Other vegetables, fresh or chilled:

> Mushrooms and truffles:

0709.52.00 Truffles [1]{.underline}/...[^1]

\* \* \*

2003 Mushrooms and truffles, prepared or preserved otherwise than by
vinegar or acetic acid:

2003.20.00 Truffles ...

\* \* \*

Legal Note 2 to Chapter 7, HTSUS, states:

> In headings 0709, 0710, 0711 and 0712 the word
> \"[vegetables]{.underline}\" includes edible mushrooms, truffles,
> olives, capers, marrows, pumpkins, eggplants (aubergines), sweet corn
> ([Zea mays]{.underline} var. [saccharata]{.underline}), fruits of the
> genus Capsicum (peppers) or of the genus [Pimenta]{.underline} (e.g.,
> allspice), fennel, parsley, chervil, tarragon, cress and sweet
> marjoram ([Marjorana hortensis]{.underline} or [Origanum
> marjorana]{.underline}).

Legal Note 1(a) to Chapter 20, HTSUS, states:

This chapter does not cover:

(a) Vegetables, fruit or nuts, prepared or preserved by the

> processes specified in chapter 7, 8 or 11;

The Harmonized Commodity Description and Coding System Explanatory Notes
("ENs") constitute the official interpretation of the Harmonized System
at the international level. While not legally binding nor dispositive,
the ENs provide a commentary on the scope of each heading of the HTSUS
and are generally indicative of the proper interpretation of these
headings. [See]{.underline} T.D. 89-80, 54 Fed. Reg. 35127, 35128
(August 23, 1989).

The General ENs to Chapter 7, HTSUS, state, in relevant part:

> This Chapter covers vegetables ... whether fresh, chilled, frozen
> (uncooked or cooked by steaming or boiling in water), provisionally
> preserved or dried \[.\]"

\* \* \*

> It should also be noted 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
> packings have been prepared or preserved otherwise than as provided
> for in the headings of this Chapter, and are therefore **excluded**
> (**Chapter 20**).

\* \* \*

> \[P\]roducts of this Chapter remain classified here (e.g., fresh or
> chilled vegetables) when subjected to packaging by means of a Modified
> Atmospheric Packaging (MAP) process.

\* \* \*

The ENs to heading 0709, HTSUS, provide, in relevant part:

The vegetables of this heading include:

(4) Mushrooms (including mushrooms of the genus *Agaricus*, such as the
    common white mushroom, *A.* *bisporus*) and truffles.

The ENs to heading 2003, HTSUS, state:

> This heading covers all mushrooms (including stems) and truffles
> except those prepared or preserved by vinegar or acetic acid (heading
> 20.01) and those presented in the states specified in Chapter 7. The
> products of this heading may be whole, in pieces (e.g., sliced) or
> homogenized.

As an initial matter, we note that Protestant has requested that another
protest be considered the "lead" protest in this matter and that the
arguments submitted therein be incorporated by reference. However, after
an extensive review of the relevant files, we are unable to substantiate
that the merchandise that is the subject of the other protest and the
merchandise at issue in the present protest are similar. As a result, we
do not consider the other protest to be the lead protest, although we
will address the arguments made therein in this decision.

Protestant raises several arguments in support of classification of the
merchandise under heading 2003, HTSUS, as preserved truffles.
Principally, he submits that the truffles have undergone processing
operations which qualify them as "prepared" or "preserved" for tariff
purposes. Protestant cites [Green Giant Co. v. United
States]{.underline}, 495 F.2d 775 (1974), in which the Court of Customs
and Patent Appeals held that mushrooms which had undergone: 1) washing;
2) sorting; 3) trimming; 4) blanching (subjecting the mushrooms to a
"roiling boil" (210 degrees Fahrenheit) for a period of 80 to 95
seconds); and, 5) quick freezing, could not be classified as "fresh
mushrooms." The Court held that the effects of the blanching alone were
"irreversible" and "sufficiently drastic" so as to take the mushroom
beyond "fresh" and to qualify it as "preserved" for tariff purposes.
[See]{.underline} [Green Giant Co.]{.underline}, at 778. Protestant
argues that the instant truffles were subjected to more rigorous
processing operations than those outlined in [Green Giant
Co]{.underline}. Specifically, he indicates that the truffles were
frozen before the preservation process and thereafter thawed, washed,
boiled at 221 degrees Fahrenheit for one hour, vacuum packed in truffle
juice, and sterilized. He contends that this process constitutes an
"irreversible" and "sufficiently drastic" step that advances the
truffles beyond their "fresh" state.

Moreover, Protestant argues that given the limited period during which
truffles may be harvested and sold, and the delicate nature of the
product, "fresh" truffles could not have withstood shipment by ocean
freight. He submits that the dates of exportation and importation of the
shipments are proof that the truffles were imported after the truffle
harvesting season in Italy had ended. Protestant also points to resale
records to show that much of the product was sold months after
importation and argues that "fresh" truffles could not have survived
additional months of warehouse storage. Finally, Protestant provides
resale invoices to show that the truffles were sold in the U.S. market
as "preserved."

Generally, it has been the experience of CBP that when "preserved"
truffles are imported in cans, the cans are filled with liquid.
Protestant has submitted documents in support of this Protest that state
that the truffles were "packed in a glass jar or tin with some truffle
juice (salt water)." However, when a sample of the entry was examined by
CBP, there was no liquid in any of the cans.

It is well-established that the methods of weighing, measuring, and
testing merchandise used by CBP officers, and the results obtained, are
presumed to be correct. [See]{.underline} [Aluminum Company of America
v. United States]{.underline}, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398
(1973). Moreover, pursuant to 28 U.S.C. § 2639(a)(1) (1994), CBP enjoys
a statutory presumption of correctness. Thus, an importer has the burden
to prove by a preponderance of the evidence that a CBP decision was
incorrect. [See]{.underline} [Ford Motor Company v. United
States]{.underline}, 157 F.3d 849, 855 (Fed.Cir.1998).

In situations in which a discrepancy exists between documented
information and the findings of a physical examination of imported
goods, it is the position of CBP that an examination may diminish the
credibility of the documentation submitted and make it unreliable for
classification purposes. Headquarters Ruling Letter ("HQ") W968376,
dated August 22, 2007, concerned the classification of cotton woven
pants. In that case, CBP examined a sample obtained from a shipment of
pants and found it to be discrepant with the entry documentation
submitted by the Protestant. The CBP lab then found that the sample
pants were made of 100% cotton, not 65% ramie and 35% cotton, as stated
on the entry documents. Accordingly, we found that our initial
determination to reclassify all of the same merchandise as pants made of
100% cotton was correct. Similarly, in this case, the CBP Agriculture
Specialist's examination of the merchandise and ensuing determination
that the imported truffles were not "preserved" undermines the documents
submitted by Protestant, which stated that the truffles were preserved.

We next consider Protestant's argument, based on HQ 957282, dated March
28, 1995, that absent evidence regarding the similarity of the product,
test results of a single sample should not be applied to other
shipments. HQ 957292 concerned, among other things, the correctness of
CBP using a sample from one shipment to determine the classification of
another shipment. In that case, one of the arguments made by counsel was
that "Customs presumption that the footwear in each of the shipments was
identical, in composition, based on a solitary test, is inappropriate."
CBP responded by relying on the agency's position set forth in HQ
083819, dated July 2, 1990, which is that if the shipment from which the
sample is obtained is from the same manufacturer, has the same style
number, costs the same, and has the same information on the invoice as
another shipment, and the second shipment is imported a very short time
after the first, it is safe to assume that the merchandise is the same
for both shipments.

In this case, according to the submitted documents dated September 8,
2005, all the truffles at issue originated in the Umbria area of Italy
during the 2004 harvesting season for black summer truffles (June 1 to
August 31). Further, all the alleged processing operations were
performed at the same facility in Italy and the truffles were allegedly
processed in the same manner. Despite the fact that the examination
revealed that the truffles were not, in fact, "preserved," we find that
it was reasonable for the Port to conclude that all the merchandise in
the covered entries was the same based on Protestant's representations,
stated above.

With regard to the fact that the covered entries span almost one year
(July 2004 to May 2005), we note that in HQ 957282, CBP agreed that a
single result should never be applied indefinitely, given the likely
changes from shipment to shipment. However, in this instance, we are of
the view that it was reasonable for the Port to conclude that the sample
was representative of the merchandise in all shipments throughout the
covered time period for the reasons stated in the paragraph above. Based
on these factors, we find that changes in the truffles from shipment to
shipment would have been highly unlikely.

Heading 2003, HTSUS, provides for: "\[T\]ruffles, prepared and preserved
otherwise than by vinegar or acetic acid." Legal Note 1(a) to Chapter
20, HTSUS, excludes vegetables prepared or preserved by the processes
specified in Chapter 7, HTSUS. This includes truffles that are "fresh,
chilled, frozen, provisionally preserved or dried." [See]{.underline}
ENs to Chapter 7, HTSUS. Based on our examination, we find that the
instant truffles are excluded from Chapter 20, HTSUS, by Legal Note
1(a), because they were fresh when imported. As such, they are provided
for in heading 0709, HTSUS, by the terms of that heading and in
accordance with Legal Note 2 to Chapter 7, HTSUS. Further, the General
ENs to Chapter 7 explain that fresh vegetables remain classified in
Chapter 7, "even if put up in airtight containers."

**HOLDING:**

In accordance with GRI 1, Legal Note 2 to Chapter 7, and Legal Note 1(a)
to Chapter 20, HTSUS, the truffles are classified under heading 0709,
specifically subheading 0709.52.00, HTSUS, which provides for: "Other
vegetables, fresh or chilled: Mushrooms and truffles: Truffles." The
column one, general rate of duty is Free. However, as "Truffle\[s\],
fresh or chilled" imported from Italy, the merchandise is subject to the
temporary duty provisions of Chapter 99, specifically, subheading
9903.02.32, HTSUS, and are dutiable at 100 percent *ad valorem*.

Since the rate of duty under the classification indicated above is the
same as the liquidated rate, you are instructed to deny the Protest in
full. In accordance with the Protest/Petition Processing Handbook (HB
3500-08A, December 2007, pp. 24 and 26), 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 in
accordance with the decision must be accomplished prior to mailing of
the decision.

Sixty days from the date of the decision the Office of International
Trade will make the decision available to CBP personnel, and to the
public on the CBP Home Page on the World Wide Web at www.cbp.gov, by
means of the Freedom of Information Act, and other methods of public
distribution.

> Sincerely,
>
> Myles B. Harmon, Director

Commercial and Trade Facilitation Division

[^1]: Truffles classified under subheading 0709.52, HTSUS, and imported
    from Italy, are subject to the temporary duty provisions of Chapter
    99, HTSUS. Under the provisions of subheading 9903.02.32, HTSUS,
    truffles classified under heading 0709.52, HTSUS, are dutiable at
    100 percent *ad valorem*.