CLA-2 RR:TC:FC 959361 RC
Mark K. Neville, Jr., Esq.
International Trade Counsellors
51 Marion Road
Westport, Connecticut 06880
RE: Request for Reconsideration of New York Ruling Letter
(NYRL) A81694; Classification of Jalapeno Peppers
Prepared by Salt and Acetic Acid
Dear Mr. Neville:
This is in response to your letter, dated June 14, 1996, on
behalf of your client, Anchor Food Products, Inc., requesting
reconsideration of NYRL A81694, dated April 17, 1996, concerning
the classification of jalapeno peppers prepared by salt and
acetic acid under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA). Further submissions were made on
August 1, 1996 and October 9, 1996.
FACTS:
The merchandise is described as jalapeno peppers in various
forms including halves, slivers, diced, and shells that have been
cleaned of seeds, blanched in a 190 degree solution of acetic
acid and hot water, and hot filled into a five gallon pail or
poly bag. A brine solution of 2.45 percent salt is added, the
pail or poly bag is sealed and stored in a refrigerated state for
up to one year. Based upon lab analysis submitted by the
importer, the peppers contain between 0.54 percent and 0.87
percent acetic acid. The October 9, 1996 submission indicates
that the acetic acid content may have been in the range of .8 to
1.0 percent. After importation, the importer intended to wash
the peppers and use them to make several appetizer products.
ISSUE:
Whether the above-described jalapeno peppers are
classifiable as provisionally preserved vegetables, that is,
unsuitable for consumption at the time of importation in heading
0711, HTSUS; or as vegetables prepared or preserved by acetic
acid, in heading 2001, HTSUS.
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 Headquarters
Ruling Letter (HRL) 952738 (January 27, 1993).
It is our understanding that provisional preservation of
unfermented jalapeno peppers cannot be achieved by a liquid
solution of 2.45 percent salt and between 0.54 and 0.87 percent
(or up to 1.0 percent) acetic acid. Microbiological
deterioration is arrested not by the solution, but by the
reduction of temperature, i.e., refrigeration. We note,
moreover, that vegetables, like these jalapeno peppers,
containing salt and acetic acid in the stated amounts, would be
edible as imported. Therefore, the peppers do not fall into
heading 0711, HTSUS.
The attorney for the importer requested that Customs discuss
the relevance of blanching in classifying the instant jalapenos.
The role of blanching in "provisional" preservation of the
instant jalapenos is not relevant to their classification outside
of heading 0711, HTSUS. The ENs clearly state that "provisional"
preservation of fruit or vegetables requires application of a
preservative chemical substance in a quantity that would
necessarily render the fruit or vegetable unpalatable. Blanching
does not render the instant jalapenos unpalatable.
It appears that the instant jalapeno peppers are
specifically prepared with these mere amounts of salt and acetic
acid for the savory properties they impart to the peppers. If
considered to be prepared or preserved by vinegar or acetic acid,
the jalapeno peppers would be classifiable in heading 2001 and,
if prepared or preserved by other than vinegar or acetic acid,
would be classifiable in heading 2005. 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 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; 952738, dated January 27, 1993;
and 956850, dated March 22, 1996.
The jalapeno peppers contain more than .5 percent acetic
acid. Therefore, they 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."
HOLDING:
The instant 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 (1996). The applicable
duty rate in 1997 is 2.4 percent ad valorem.
NYRL A81694 is affirmed.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division