CLA-2 RR:CR:GC 957041K
Port Director
U.S. Customs Service
P.O. Box 3130
Laredo, Texas 78044
RE: Protest 2304-93-100478; Jalapeno Peppers; Acetic Acid
Content
Dear Port Director:
The is our decision on Protest 2304-93-10078 filed against
your classification of Jalapeno peppers in a liquid solution. In
preparing this decision, consideration was given to further
submissions dated May 1, May 19, and June 12, 1997, by counsel
for the protestant, as well as oral arguments made at a meeting
in Customs Headquarters on May 2, 1997.
FACTS:
The 19 consumption entries covering the imported merchandise
from Mexico were reported as being liquidated between September
17 and September 24, 1993, under the provision for other
vegetables prepared or preserved otherwise than by vinegar or
acetic acid, in subheading 2005.90.55, Harmonized Tariff Schedule
of the United States (HTSUS) (1993), with duty at the general
rate of 17.5 percent ad valorem. A timely protest under 19
U.S.C. 1514 was received on December 15, 1993. The protestant
requested reliquidation of the entries under the provision for
other vegetables prepared or preserved by vinegar or acetic acid,
in subheading 2001.90.39, HTSUS (1993), with duty at the
general rate of 12 percent ad valorem.
The merchandise consists of a variety of canned Jalapeno
peppers in a liquid solution that are whole, sliced or chopped
that were prepared by a Mexican processor-shipper. The Customs
laboratory tested samples of various products taken from 4 of the
19 shipments to determine the acetic acid contents. Of the
approximately 8 samples tested, Customs found that 7 contained by
weight less than 0.5 % acetic acid reported as follows:
Customs Laboratory Report (CLR) 5-93-20796-001 for an entry
dated April 27, 1993, reports that a sample product number
001, whole Jalapeno peppers, contained by weight
approximately 0.4 % acetic acid.
CLR 5-93-20797-001 for an entry dated May 5, 1993, reports
that a sample (product number not indicated) of sliced
Jalapeno peppers, contained by weight approximately
0.3 % acetic acid.
CLR 5-93-20882-001 for an entry dated May 12, 1993, reports
that a sample product number 0003, whole Jalapeno peppers,
contained by weight approximately 0.3 % acetic acid.
CLR 5-93-20883-001, also covering the entry dated May 12,
1993, reports that a sample of product numbered 0006, a
second product of whole Jalapeno peppers, contained by
weight approximately 0.3 % acetic acid.
CLR 5-93-20885-001, also covering the entry dated May 12,
1993, reports that a sample product numbered 0014, a third
product of whole Jalapeno peppers, contained by weight
approximately 0.4 % acetic acid.
CLR 5-93-20884-001, also covering the entry dated May 12,
1993, reports that a fourth sample of product number 0021,
of chopped Jalapeno peppers, contained by weight
approximately 0.7 % acetic acid.
CLR 5-93-20894-001 for an entry dated June 1, 1993, reports
that sliced Jalapeno peppers (product number not stated),
contained by weight approximately 0.3 % acetic acid.
CLR 5-93-20895-001, also covering the entry dated June 1,
1993, reports that a sample of product 0014, another product
of sliced Jalapeno peppers, contained by weight
approximately 0.33 % acetic acid.
In addition, 24 other CLRs were submitted with the protest
report covering other entries between April 28 and November 12,
1993, not subject to this protest, for Jalapeno peppers produced
by the same foreign processor and imported by the protestant.
Of the approximately 28 samples tested, 16 were reported to
contain less than 0.5 % by weight of acetic acid, and 12 were
reported to contain 0.5 % or more. Further CLRs for other
samples produced by the same foreign processor but imported by
another importer on April 27, 1993, were reported not to contain
0.5 % by weight of acetic acid.
According to the protestant, the foreign processor employs
chemists that test the products for acetic acid content and the
results of these tests confirm a 0.5 % by weight of acetic acid.
Samples are sent to an independent laboratory for testing but not
for purposes of testing for the acetic acid content of the
products. There are other protests pending and the protestant
has submitted the CLRs of the testing done by Customs for the
acetic acid content of the products. The protestant asserts
that of 21 samples tested by Customs for imports during 1993, 40
% of the CLRs confirm an acetic acid content of 0.5 % or higher.
ISSUE:
Whether the various varieties of Jalapeno peppers are
prepared or preserved by vinegar or acetic acid.
LAW AND ANALYSIS:
Subheading 2005.90.55, HTSUS (1993), provides for other
vegetables prepared or preserved otherwise than by vinegar or
acetic acid, not frozen, dutiable at the general rate of 17.5
percent ad valorem.
Subheading 2001.90.39, HTSUS (1993), provides for other
vegetables ...prepared or preserved by vinegar or acetic acid,
dutiable at the general rate of 12 percent ad valorem.
The HTSUS, and the Explanatory Notes to the Harmonized
Commodity Description and Coding System, a guideline for use in
determining classification under HTSUS, do not define what
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, 952738 dated January 27, 1993, and
953518 dated June 24, 1993.
The protestant does not contest the Customs position
concerning the 0.5 % decision (HRL 069121) and does not contest
the testing procedures performed at the Customs laboratories to
determine the acetic acid content. The position of the protestant
is basically the "best evidence" rule. That is, the protestant
agrees that the entries covering products subject to the protest
in which CLRs report less than a 0.5 % acetic acid contents
should be liquidated under subheading 2005.90.55, HTSUS, and
those products in which the CLRs report 0.5 % or more should be
liquidated in subheading 2001.90.39, HTSUS. However, the
protestant disagrees with Customs position concerning products
covered by the entries in which Customs did not conduct testing
for the acetic acid content.
From a coding system on the containers, the processor can
trace the Jalapeno peppers to the manufacturing date. The
processor, by laboratory tests performed by their chemists and
their documents would show whether the products contain the
minimum content of not less than 0.5 % by weight of acetic acid.
Therefore, it is the position of the protestant, that those
products in which Customs did not perform tests for the acetic
acid contents, the "best evidence" as to the acetic acid is
contained in the processor's own records and those products
should be classified in subheading 2001.90.39, HTSUS.
Customs will consider the "best evidence" as we have done in
Customs Headquarters Ruling Letter (HRL) 953518 dated June 24,
1993. In that case, Customs did not perform tests for two
products covered by the entry but did conduct tests for similar
imported products made by the same manufacturer. The protestant
submitted an independent laboratory report for one of the
products, showing that the product imported, sliced Jalapeno
peppers, contained 0.7 % acetic acid and submitted a letter from
a food consultant who concluded by a taste-test, that the product
contained vinegar. We concluded, that based on the "best
evidence" and in the absence of a test perform by Customs, the
peppers were classified in subheading 2001.90.39, HTSUS. Similar
information was not submitted for the other product, diced
Jalapeno peppers. We concluded that the best evidence was the
Customs tests on similar shipments which showed a content of less
than 0.5 % and concluded that those products were classified in
subheading 2005.90.55, HTSUS.
As noted previously, no independent laboratory reports were
submitted covering the testing done on behalf of the processor to
show the acetic acid content. The protestant provided test
results for merchandise in one of the protested entries in which
the tests performed by the employees of the processor showed an
acetic acid content of .5% for one lot of merchandise and a .57%
acetic acid content for another lot. Customs also performed
laboratory tests on a sample of the merchandise from this entry
and found the sample to have an acetic acid content of .36% (CLR
5-93-20885-001). Thus, there is an apparent conflict between the
CLRs and the tests performed by the employees of the processor.
In such a conflict, the CLRs are presumed to be correct.
We note that Customs performed extensive tests and that the
tests show that many of the products claimed to have a 0.5%
acetic acid content did not do so. We are also aware that it is
possible that the acetic acid content may be higher at the time
of processing than at the time of importation (see the
conflicting results of the tests by the processor's employees and
CLR 5-93-20885-001, described above). In this regard, imported
merchandise must be classified with reference to its condition
when imported. Based upon the facts, we conclude that the tests
performed by the processor are not reliable.
HOLDING:
The merchandise is classified as other vegetables prepared
or preserved otherwise than by vinegar or acetic acid, in
subheading 2005.90.55, HTSUS, except that the merchandise tested
by Customs and shown to contain 0.5 % or more by weight of acetic
acid, is classified in subheading 2001.90.39, HTSUS.
You are instructed to deny the protest except for the
products tested by Customs and shown to contain 0.5 % or more by
weight of acetic acid.
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, Freedom of Information Act and other
public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division
Office of Regulations and Rulings