HQ 954756: Application For Further Review of Protest No. 2608-93-100004; Fresh Vegetables

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 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