Application For Further Review of Protest No. 2608-93-100004; Fresh Vegetables

HQ 954756 February 3, 1994 CLA-2 CO:R:C:F 954756 K CATEGORY: Classification TARIFF No.: 0709.90.4080 District Director U.S. Customs Service 9 North Grand Avenue Nogales, Arizona 85621 RE: Application For Further Review of Protest No. 2608-93-100004; Fresh Vegetables Dear Sir: On August 2, 1993, your office approved of a referral to Headquarters of a request for further review of the above- referenced protest. Our decision follows. FACTS: According to Customs Form 6445A, the consumption entries listed in the protest covering fresh vegetables from Mexico were liquidated on April 16, 1993, under subheading 0709.90.4080, Harmonized Tariff Schedule of the United States (HTSUS), as other fresh or chilled vegetables, with duty at 25 percent ad valorem. A timely protest under 19 U.S.C. 1514 was filed on May 27, 1993, requesting reliquidation under the provision for squash, subheading 0709.90.20, HTSUS, with duty at 2.4 cents per kilogram. The vegetables are identified by their transliterated Chinese names of opo, sin gua, cee gua and mo gua. ISSUE: The issue is whether the fresh vegetables listed above are classifiable as squash, subheading 0709.90.20, HTSUS. LAW AND ANALYSIS: The protestant has submitted technical information to indicate that the fresh vegetables that are covered by the protest and squash, are members of the same botany family of the Cucurbitaceae group and, therefore, the vegetables covered by -2- the protest are classifiable as squash. There are about 96 genera and 750 species of the Cucurbitaceae family. (See World Vegetables by Mas Yamaguchi, Department of Vegetable Crops, University of California at Davis, California, Avi Publishing Co., 1983, pp. 312-313, 330-333.) Plants are identified by their genera and species, not by their botany families. Although cucumbers fall within the genus/specie of Cucumis sativus, and squash falls within the genus/specie of Cucurbita spp., and both are in the same botany family of Cucurbitaceae, they are different vegetables. As noted above, squash falls within the principal genus/specie of Cucurbita spp. that does not include the fresh vegetables that are covered in this protest which fall within other principal genera/species of the Cucurbitaceae family. Accordingly, the fresh vegetables are not classified as squash. HOLDING: Fresh or chilled vegetables known as opo, sin gua, cee gua, and mo gua, are classified in subheading 0709.90.4080, HTSUS, as other fresh or chilled vegetables, with duty at the general rate of 25 percent ad valorem. You are directed to deny the protest 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 via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels. Sincerely, John Durant, Director Commercial Rulings Division