CLA-2 RR:TC:FC 957625K
Port Director
U.S. Customs Service
9400 Viscount
El Paso, Texas 79925
RE: Application For Further Review of Protest No. 2402-94-100039;
Jalapeno Peppers and Other Vegetables Provisionally Preserved
Dear Port Director:
The following is our response to the referral by your
office, dated February 8, 1995, of the request for further review
of the above-referenced protest.
FACTS:
The consumption entries covering the imported merchandise
from Mexico were liquidated on June 3, 1994, under the provision
for other vegetables prepared or preserved by vinegar or acetic
acid, in subheading 2001.90.3900, Harmonized Tariff Schedule of
the Unites States (HTSUS) (1993), with duty at the general rate
of 12 percent ad valorem. A timely protest under 19 U.S.C. 1514
was received on August 12, 1994. The protestant requested
reliquidation of the entry under the provision for other
vegetables provisionally preserved, in subheading 0711.90.6000,
HTSUS (1993), with a special free rate of duty. A further
submission was submitted dated September 19, 1995, with an
additional laboratory report.
The merchandise consists of Jalapeno peppers, Pimento pepper
hulls, and cauliflower buttons. A Customs laboratory report
dated January 31, 1994, indicated that samples of peppers were
immersed in a brine containing 1.18 to 1.20 percent of acetic
acid and 10.5 percent of salt. In a second report dated April 5,
1994, it was indicated "that the product, which is in a prepared
or preserved' condition, would in all probability be de-salted
prior to being offered commercially for immediate human
consumption."
Technical information was submitted with the protest and in
the further submission indicating that the vegetables were not
treated prior to immersion in the brine, that fermentation could
not take place in a solution with a 10.5 percent salt content,
and that the vegetables, upon importation, would have to be de-salted (to a 2 to 5 percent range) and further processed for
human consumption. A question arose during the protest procedure
as to whether the cauliflower buttons were fermented while in the
brine and an independent laboratory report stated that "tests
performed indicate no detection of food fermenting organisms".
ISSUE:
The issue is whether the vegetables as described above have
been provisionally preserved in a brine, and not suitable in that
state for immediate consumption.
LAW AND ANALYSIS:
Heading 0711, HTSUS, covers 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. The term "provisionally
preserved" is not defined. However, to qualify as provisionally
preserved, the statutory heading requires that the vegetables
must be in a preservative substance, and that they are unsuitable
in that state for immediate consumption.
The Explanatory Notes (EN) to the Harmonized Commodity
Description and Coding System, which represent the official
interpretation of the tariff at the international level,
facilitate classification under the HTSUS by offering guidance in
understanding the scope of the headings and General Rules of
Interpretation of the HTSUS. The EN for heading 0711 indicate
that the vegetables covered by the heading are treated solely to
ensure their provisional preservation during transportation or
storage provided they remain unsuitable for immediate consumption
in that state and are mainly used as raw materials for
manufacturing purposes. However, the EN excludes from the
heading goods which, in addition to having been provisionally
preserved in brine, have also been specially treated such as by
soda solution and by lactic fermentation.
We are satisfied that with the technical information
submitted that the vegetables meet the criteria for the term
"provisionally preserved" because of the following reasons.
The vegetables are in a preservative solution (brine
consisting of water and approximately 10.5 percent salt and
1.18 to 1.20 percent of acetic acid).
The vegetables are in a solution containing approximately
10.5 percent of salt and are unsuitable in that state for
immediate consumption.
The vegetables have to be de-salted after importation to
make the vegetables suitable for consumption.
The vegetables have not been specially treated by soda
solution or by lactic fermentation prior to importation.
The vegetables have been treated solely to ensure their
provisional preservation during transport or storage prior
to use.
HOLDING:
Vegetables as described in the above criteria are
provisionally preserved and classified under heading 0711, HTSUS.
Hence, the vegetables as described above are classified in
subheading 0711.90.6000, HTSUS (1993).
You are directed to allow 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, Freedom of Information Act and other public
access channels.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division