CLA-2 RR:TC:FC 959313 RC
Port Director
U.S. Customs Service
P.O. Box 3130
Laredo, Texas 78044
RE: Decision on Application for Further Review of Protest No.
2304-95-100190, filed
October 19, 1995, concerning the classification of whole
artichokes in vinegar
Dear Port Director:
The following is our decision in response to the referral
from your office on or about
May 22, 1996, of the request for further review of the
above-referenced protest.
FACTS:
A consumption entry covering canned whole artichoke hearts
in vinegar was entered in April 1995 under subheading
2001.90.2500, HTSUSA, the provision for other vegetables prepared
or preserved by vinegar or acetic acid, free of duty, under the
North American Free Trade Agreement (NAFTA), as articles produced
entirely in the territory of Mexico. A sample from the shipments
at issue were analyzed by the Customs laboratory and found to
contain 0.2 percent acetic acid (lab report no. 5-95-20763).
Based on these laboratory findings, the entries for the
artichokes were liquidated on July 21, 1995, under subheading
2005.90.8000, HTSUSA, the provision for other vegetables prepared
or preserved otherwise than by vinegar or acetic acid, dutiable
at the rate of 14 percent ad valorem, under the NAFTA, as
articles of Mexican origin.
A timely protest under 19 U.S.C. 1514 was filed on October 19,
1995, requesting reliquidation under subheading 2001.90.2500,
HTSUSA.
ISSUE:
Whether the evidence presented in the protest substantiates
that the specific artichokes subject of the protest were prepared
or preserved by vinegar or acetic acid.
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. The Explanatory Notes (EN's) to the Harmonized
Commodity Description and Coding System represent the official
interpretation of the tariff at the international level and
facilitate classification under the HTSUSA by offering guidance
in understanding the scope of the headings and GRIs.
The HTSUSA and the EN's do not define what constitutes
"prepared or preserved by vinegar or acetic acid." 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
HTSUSA. See, HRL's 085838 dated December 21, 1989, and 952738
dated January 27, 1993.
The Customs laboratory analyzed random samples of the actual
artichokes subject of this protest and found that the artichokes
contained less than 0.5 percent acetic acid. The protestant does
not dispute the efficacy of classification in heading 2001 or
2005, HTSUS, using 0.5 percent acetic acid as the proper
threshold amount. The protestant claims that the artichokes at
issue contain more than 0.5 percent acetic acid and submitted a
laboratory report, paid for by the protestant, to support its
claim.
Courts have long held that articles are classifiable based
on their condition at the time of importation. See, United
States v. Citroen, 223 U.S. 407 (1911) and cases cited therein;
The Carrington Co. v. United States, 61 CCPA 77, C.A.D. 1126
(1974). Additionally, it is well settled that the methods of
weighing, measuring, and testing merchandise used by Customs
officers and the results obtained are presumed to be correct.
United States v. Gage Bros., 1 Ct. Cust. Appls. 439, T.D. 31503;
United States v. Lozano, Son & Co., 6 Ct. Cust. Appls. 281, T.D.
35506; Draper & Co., Inc. v. United States, 28 Cust. Ct. 136,
C.D. 1400. This presumption may be rebutted by showing that such
methods or results are erroneous. Sears, Roebuck & Co. v. United
States, 3 Ct. Cust. Appls. 447, T.D. 33035; Gertzen & Co. v.
United States, 12 Ct. Cust. Appls. 499, T.D. 40697; Pastene &
Co., Inc. v. United States, 34 Cust. Ct. 52, C.D. 1677.
In order to rebut the presumption of correctness carried by
the Customs laboratory analysis, the protestant must show the
Customs laboratory analysis was erroneous. In Consolidated Cork
Corp. v. United States, 54 Cust. Ct. 83, C.D. 2512 (1965), the
court observed the following:
These cases indicate that the final determination in
situations where the merchandise approaches the
borderline set by the tariff act depends upon the
accuracy of the methods used and their application by
the chemists who performed the tests. One criterion is
whether the test has been established by an appropriate
Government agency or is recognized by commercial
laboratories or by the trade. Another is whether the
results obtained check with a standard or with each
other.
In HRL 070173, dated December 27, 1982, Customs held that
the presumption of correctness attached to a Customs laboratory
analysis was not overcome by conflicting results from independent
laboratory analyses, even when the same method of testing was
utilized by both Customs and the independent laboratories.
No evidence was submitted by the protestant to rebut the
presumption of correctness of the Customs laboratory report.
That is, the protestant did not submit any evidence to show that
the Customs laboratory used improper methodology to arrive at its
results. Furthermore, the protestant's independent laboratory
testing raises questions concerning the number of tests and,
perhaps what is more important, the origin of the sample
artichokes analyzed. The Customs laboratory analyzed samples of
artichokes from the actual shipments at issue. While the
protestant claims that the independent laboratory analyzed
artichokes from the shipments at issue, the protestant has not
produced any clear documentation to support this claim.
Consequently, it is our opinion that your office correctly
concluded that the products where not classifiable as other
vegetables prepared or preserved by vinegar or acetic acid.
HOLDING:
The subject artichokes are properly classifiable in
subheading 2005.90.8000, HTSUSA, the provision for "Other
vegetables prepared or preserved otherwise than by vinegar or
acetic acid, not frozen: Other vegetables and mixtures of
vegetables: Artichokes," eligible for preferential treatment
under the NAFTA, dutiable at the rate of 14 percent ad valorem.
You are instructed to deny the protest in full. A copy of
this decision should be attached to the Form 19 to be returned to
the protestant.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated
August 4, 1993, Subject: Revised Protest Directive, this
decision should be mailed by your office to the protestant no
later than 60 days from the date of this letter. Any
reliquidation of the entries in accordance with the decision must
be accomplished prior to mailing of the decision. Sixty days
from the date of the decision, the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS, and to the
public via the Diskette Subscription Service, the Freedom of
Information Act, and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division