CLA-2 RR:TC:FC 956850 RC
Herbert Lynch, Esq.
Sullivan & Lynch, P.C.
156 State Street
Boston, Massachusetts 02109
RE: Classification of Jalapeno Peppers Prepared by Salt and
Acetic Acid
Dear Mr. Lynch:
This is in response to your letter dated July 26, 1994,
concerning the classification of jalapeno peppers prepared by
salt and acetic acid under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA).
FACTS:
The merchandise is described as jalapeno peppers, which have
been cut in half, cleaned of seeds, placed into a plastic-lined,
250-gallon box with a solution composed of water, 5 percent salt,
and 1.4 percent acetic acid, chilled to 40 degrees Fahrenheit,
and transported by refrigerator truck to customers in the United
States. The peppers have not been prepared in any manner other
than described (i.e., by soda solution, by lactic fermentation).
The U.S. purchaser will process the vegetable in either of two
ways. The peppers may be removed from the solution, dried,
stuffed with meat, cheese, etc., and then frozen or refrigerated
and sold at retail. Other customers will take the peppers, with
the liquid solution, mix them with other ingredients, and
thermally treat and pack the resulting, finished, food product in
metal cans for wholesale or retail use.
ISSUE:
Whether jalapeno peppers shipped in a solution of 5 percent
salt and 1.4 percent acetic acid are provisionally preserved,
that is, unsuitable for consumption at the time of importation or
are vegetables prepared or preserved by acetic acid, in heading
2001.
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with
the General Rules of Interpretation (GRIs). The systematic
detail of the harmonized system is such that virtually all goods
are classified by application of GRI 1, that is, 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 may then
be applied. The Explanatory Notes (ENs) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUSA by offering guidance
in understanding the scope of the headings and GRIs.
Subheading 0711.90.6000, HTSUSA, provides for "Vegetables
provisionally preserved (for example, by sulfur dioxide gas, in
brine, in sulfur water or in other preservative solutions), but
unsuitable in that state for immediate consumption: Other
vegetables; mixtures of vegetables: Other vegetables; mixtures
of vegetables."
In considering whether these jalapeno peppers would be
considered as provisionally preserved under the Harmonized
System, we consulted the ENs. The relative explanatory note (EN
07.11) specifies that vegetables which have been treated solely
to ensure their provisional preservation during transport or
storage prior to use are included in heading 0711 of the
Harmonized Tariff System, provided they remain unsuitable for
immediate consumption in that state. The EN excludes items
which, in addition to having been provisionally preserved in
brine, have been specially treated (i.e., by soda solution, by
lactic fermentation).
In general, vegetables are provisionally preserved by being
placed into a medium or subjected to a treatment that, for a
limited time, halts or significantly reduces undesirable
microbiological deterioration. The purpose of provisional
preservation is to prevent the loss of the product while in
transit or awaiting processing. Invariably, to accomplish this,
the quantity of substances added to the liquid medium (when
immersed in solution) or applied to the vegetable (in the case of
external treatment) is such that the vegetable itself is rendered
unpalatable, and the preservative substances must be thoroughly
removed when the final processing begins. See HRL 952738
(January 27, 1993).
It is our understanding that provisional preservation of
unfermented jalapeno peppers cannot be achieved by a liquid
solution of 5 percent salt and 1.4 percent acetic acid. Five
percent salt is too little to ferment the peppers, and 1.4
percent acetic acid is too little to preserve them.
Microbiological deterioration is prevented not by the solution,
but by the reduction of temperature, i.e., refrigeration. We
note that these jalapeno peppers would be edible as imported.
This is evident because neither of the two stated processing
methods for these peppers involves washing to remove either the
salt or acetic acid before they are ultimately consumed.
Refrigeration of the peppers preserves them as they are
transported. These peppers, while cold, are nevertheless
suitable for consumption upon importation. Therefore, the
peppers do not fall into heading 0711, HTSUSA.
It appears that the jalapeno peppers are specifically
prepared with these amounts of salt and acetic acid for the
savory properties they impart to the peppers. Therefore, we find
the jalapeno peppers fall into subheading 2001.90.3900, HTSUSA,
the provision for "Vegetables, fruit, nuts and other edible parts
of plants, prepared or preserved by vinegar or acetic acid:
Other: Other: Other."
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. This position is unchanged. See HRL's
085838 dated December 21, 1989 and 952738 dated January 27, 1993.
Our decision is based on the facts as stated in your
submission. At this point, Customs has not performed laboratory
analysis for the jalapeno peppers subject of this ruling. We
understand there may be variances in the specific acetic acid
content of a given shipment; a large variance may result in a
different classification. In order to determine if shipments
contain the proper acetic acid level for classification in 2001,
HTSUSA, the Port Director may exercise discretion and have our
laboratory test actual shipments of jalapeno peppers to determine
the precise substantive content.
HOLDING:
The sliced and cleaned jalapeno peppers properly fall into
the provision for vegetables prepared or preserved by vinegar or
acetic acid, subheading 2001.90.3900, HTSUSA, dutiable at 4.8
percent ad valorem as products of Mexico.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division