CLA-2 CO:R:C:F: 952738 ALS
Mr. Herbert E. Harris II
Harris and Ellsworth
2600 Virginia Ave
Suite 1113
Washington, DC 20037-1905
RE: Vegetables - Pepperoncini and Giardiniera (also Giardinera)
in Preservative Solution
Dear Mr. Harris:
This is in reference to your letter of October 5, 1992,
regarding certain vegetables in preservative solution, the product
of Greece, which are imported in plastic barrels which are not
hermetically sealed.
FACTS:
The products under consideration are pepperoncini and
giardiniera which are grown and partially processed in Greece.
The products are stated to be inedible at the time of importation.
The pepperoncini, small whole peppers, are imported in plastic
barrels of 120 kilograms each, net drained weight. They are
imported in a preservative solution composed of water, salt, citric
acid, sodium bisulfite and sodium benzoate.
The giardiniera, a mixture of vegetables containing
cauliflower, carrots, celery and red peppers, are imported in
plastic barrels of 150 kilograms each, net drained weight. It is
imported in a preservative solution composed of water, salt, acetic
acid, citric acid, sodium bisulfite and sodium benzoate.
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Subsequent to importation, the products are removed from the
preservative solution, soaked in fresh water and repacked in a
"finished" solution of water, salt and vinegar in preparation for
commercial sale.
ISSUE:
How are pepperoncini and giardiniera classified?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI's) taken in order.
GRI 1 provides that the classification is determined first in
accordance with the terms of the headings and any relative section
and chapter notes. If GRI 1 fails to classify the goods and if the
heading and legal notes do not otherwise require, the remaining
GRI's are applied taken in order.
We noted that the vegetables, as imported, are in preservative
solutions and are not edible. They are washed and repacked in a
brine solution subsequent to importation. Depending on the
preparation or preservative method the vegetables would be
classifiable in either Chapter 7, HTSUSA, which includes edible
vegetables, etc., or Chapter 20, which includes preparations of
vegetables.
Legal Note 1(a) of Chapter 20, HTSUSA, specifies, as hereto
pertinent, that vegetables prepared or preserved by the processing
specified in Chapter 7, HTSUSA, are not covered by the provisions
of Chapter 20. We reviewed the various provisions of Chapter 7 as
to the preparation or preservation procedures therein. Those
provisions generally describe vegetables which are fresh, chilled,
steamed or dried, but make no reference to the procedures utilized
as to the subject vegetables. Reference is also made therein to
vegetables provisionally preserved and unsuitable for immediate
consumption.
Provisional preservation is a means of preserving fruits or
vegetables and preventing undesirable deterioration, for a short
time period. It is employed when fruits or vegetables are awaiting
further processing, usually during transportation to, or in the
storage areas of, processing facilities. In order to prevent
spoilage, a variety of methods are employed, among them - 3 -
immersion in high-salt brines, application of chemical
preservations, etc. Regardless of the method used, in order to
prevent microbiological spoilage, the preservative substance is
necessarily applied in a quantity that would render the fruit or
vegetable unpalatable. When the product is brought to the
processing plant, the provisional preservative substance is removed
(usually by washing with water), and final processing,
preservation, and packaging is completed.
Provisional preservation may be utilized for fruits or
vegetables at various stages. Freshly harvested products may be
provisionally preserved to immediately arrest deterioration. For
example, a processing plant may not have the capacity to handle a
large crop in a short harvest season, and rather than lose product,
provisional preservation is used to "hold" the fruit or vegetable
until it can be used. On the other hand, and what is relevant to
the vegetables under consideration, provisional preservation may
be used to halt microbiological fermentation after it has reached
a desired level. At this point, the fruit or vegetable is placed
in a "holding" condition as above. In either case, the fruit or
vegetable has been provisionally preserved.
In considering whether these vegetables would be considered
as provisionally preserved under the Harmonized System we consulted
the Explanatory Notes (EN) to the Harmonized System which represent
the opinion of the tariff classification experts at the
international level. The relative explanatory note
(EN 70.11), specifies that vegetables which have been treated
solely to ensure their provisionally 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 (e.g., by soda solution, by lactic
fermentation).
Although the information provided with the ruling request does
not specify whether the products have ben specially treated, we
believe the products have been so treated. In determining whether
these vegetables have been specially treated we considered the
nature of the vegetables, i.e., their intended use. These
vegetables which are of a type known as "pickles", foods to which
an edible acid (lactic, acetic) has been added. They are the type
of vegetables one would find on a condiment or - 4 -
relish tray. Such foods have undergone a degree of microbiological
fermentation in order to alter the taste of the vegetable. Since
the ruling request indicates that the vegetables will only be
washed and repacked in the United States in a "finished" solution,
we have concluded that the fermentation occurred prior to immersion
in the barrels. Based thereon the vegetables would be precluded
from classification in heading 0711, HTSUSA, and are classifiable
in chapter 20.
The vegetables, if considered to be prepared or preserved by
vinegar or acetic acid, would be classifiable in heading 2001 and,
if prepared or preserved by other than vinegar or acetic acid,
would be classifiable in heading 2005.
It has been Customs practice to regard a product as prepared
or preserved by vinegar or acetic acid when the acetic acid content
in the equilibrated product is equal to or exceeds .5 percent, as
determined by laboratory analysis. (See Headquarters Ruling Letter
(HRL) 085838, dated December 21, 1989, and HRL 069121, dated May
20, 1983.)
Since the pepperoncini does not appear to be preserved by
vinegar or acetic acid, it would be classified in subheading
2005.90.5510, HTSUSA, which provides for other vegetables prepared
or preserved otherwise than by vinegar or acetic acid, not
frozen...other vegetables...fruits of the genus capsicum
(peppers)...other...sweet bell-type peppers.
The giardiniera, if it is found to contain a vinegar or acetic
acid of .5 percent or more, would be classified in subheading
2001.90.3900, HTSUSA, as other vegetables prepared or preserved by
vinegar or acetic acid, other. Since giardiniera, a mixture of
vegetables, is not specifically described by one of the named
vegetables and since none of the vegetables in the relative
subheading form the essential character of the mixture, such
classification would be made pursuant to GRI 3(c).
The giardiniera, with less than .5 percent acetic acid, would
be classified in subheading 2005.90.9500, HTSUSA, which provides
for other vegetables prepared or preserved otherwise than by
vinegar or acetic acid...mixtures of vegetables...other. (See New
York Ruling Letter (NYRL) 862378).
HOLDING:
Pepperoncini grown in Greece and preserved in a solution
composed of water, salt, citric acid, sodium bisulfite and sodium
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benzoate is classifiable in subheading 2005.90.5510, HTSUSA, which
provides for other vegetables prepared or preserved otherwise than
by vinegar or acetic acid, not frozen...other vegetables...fruits
of the genus capsicum (peppers)...other... sweet bell-type peppers.
The general rate of duty for pepperoncini so classified is 17.5
percent ad valorem.
Giardiniera, if it contains a vinegar or acetic acid content
of .5 percent or more, as determined by laboratory analysis, would
be classified in subheading 2001.90.3900, HTSUSA, as other
vegetables prepared or preserved by vinegar or acetic acid, other.
The general rate of duty for giardiniera so classified is 12
percent ad valorem.
Giardiniera, if it contains a vinegar or acetic acid content
of less than .5 percent, as determined by laboratory analysis, is
classifiable in subheading 2005.90.9500, HTSUSA, as other
vegetables prepared or preserved otherwise than by vinegar or
acetic...mixtures of vegetables...other. The general rate of duty
for giardiniera so classified is 17.5 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division