CLA-2-CO:R:C:F 953518K
TARIFF No.: 2001.90.3900 and 2005.90.5590
District Director of Customs
International and Terrace Streets
Nogales, Arizona 85621
RE: Application For Further Review of Protest No. 2604-93-100002;
Jalapeno Peppers Prepared by Vinegar or Acetic Acid
Dear Sir:
The following is our decision in response to the referral from
your office on or about March 2, 1993, of the request for further
review of the above-referenced protest.
FACTS:
Two consumption entries covering canned Jalapeno peppers were
liquidated on November 20, 1992, under the provision for other
vegetables prepared or preserved otherwise than by vinegar or
acetic acid, subheading 2005.90.5590, Harmonized Tariff Schedule
of the United States (HTSUS), with duty at the rate of 17.5 percent
ad valorem. A timely protest under 19 U.S.C. 1514 was filed on
January 5, 1993, requesting reliquidation under the provision for
other vegetables prepared or preserved by vinegar or acetic acid,
subheading 2001.90.39, HTSUS, with duty at the rate of 12 percent
ad valorem.
ISSUE:
The issue is whether the evidence presented in the protest
substantiates that the Jalapeno peppers were prepared or preserved
by vinegar or acetic acid.
LAW AND ANALYSIS:
The HTSUS, and The Explanatory Notes to the Harmonized
Commodity Description and Coding System, a guideline for use in
determining classification under HTSUS, does not define what
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constitutes prepared or preserved by vinegar or acetic acid (found
in vinegar). However, under the former tariff, The Tariff
Schedules of the United States, the Customs position as to the
minimum amount of acetic acid necessary to determine whether a
vegetable is prepared or preserved by vinegar or acetic acid was
outlined in Headquarters Ruling Letter (HRL) 069121, dated May 20,
1983 (I/A 247/80). That decision held that a product required a
minimum of 0.5 percent acetic acid (subject to allowable
tolerances) in the equilibrated product" to be considered as
prepared or preserved by vinegar or acetic acid and this position
has continued under HTSUS. See HRL Letters, 085838 dated December
21, 1989 and 952738 dated January 27, 1993. The protestant does
not contest this position and it is not an issue in the protest.
However, it is the position of the protestant that the products
comply with the Customs position.
Customs did not perform laboratory analysis for the
merchandise which is the subject of this protest. However, Customs
did conduct laboratory analysis for similar imported merchandise
made by the same manufacturer which indicated that the merchandise
did not contain 0.5 percent acetic acid. Based upon the best
available information, the office of the District Director
correctly concluded that the products where not classifiable as
other vegetables prepared or preserved by vinegar or acetic acid.
For # 10 cans of Nacho Sliced Jalapenos, the protestant has
submitted a statement from the manufacturer certifying that vinegar
was used in the canning. The statement does not disclose the
amount of vinegar used. The protestant submitted a letter from a
food consultant who concluded by a taste-test that the product
contained vinegar. Finally, the protestant submitted an
independent laboratory report indicating the presence of 0.70
percent acetic acid (vinegar). We assume for purposes of this
decision that the sample tested by the independent laboratory was
obtained from the shipment involved in this protest. Accordingly,
we are satisfied that the best evidence, as submitted by the
protestant, supports the claim that the Nacho Sliced Jalapenos
covered by the consumption entries concerned with this protest
meets the Customs position that the product is preserved or
prepared by (0.5 percent or more) vinegar or acetic acid.
Similar information for the other product concerned with this
protest, diced Jalapeno peppers (Jalapeno Picado 1/4 x 1/4) was not
submitted with the protest. A Customs labororty analysis for a
similar shipment of diced Jalapeno peppers made by the same
manufacturer and also imported by the protestant reported that no
acetic acid was detected in the product. Accordingly, the best
evidence available is that the diced Jalapeno peppers involved in
this protest did not contain 0.5 percent acetic acid and,
therefore, the product is not preserved or prepared by vinegar or
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acetic acid.
HOLDINGS:
There is a long standing position of the Customs Service that
in order for vegetables, fruit, nuts and other edible parts of
plants, to be considered as prepared or preserved by vinegar
or acetic acid and classifiable in heading 2001, HTSUS, that a
product must contain a minimum of 0.5 percent acetic acid (subject
to allowable tolerances) in the equilibrated product.
Based on the Customs position you are instructed to allow the
protest in part and to deny the protest in part as follows.
1. The # 10 cans of Nacho Sliced Jalapeno peppers involved in
this protest are classifiable as other vegetables prepared or
preserved by vinegar or acetic acid, subheading 2001.90.39, HTSUS,
with duty at 12 percent ad valorem and the protest is allowed, in
part, for this product.
2. The diced Jalapeno peppers (Jalapeno Picado 1/4 x 1/4)
involved in this protest are classifiable as other vegetables
prepared or preserved otherwise than by vinegar or acetic acid,
subheading 2005.90.5590, HTSUS, with duty at 17.5 percent ad
valorem and the protest is denied, in part, for this product.
A copy of this decision should be attached to Customs Form
19, Notice of Action, to be sent to the protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division