CLA-2 RR:CR:GC 962019 MGM
Port Director
U.S. Customs Service
P.O. Box 3130
Laredo, TX 78044
Re: Protest 2304-96-100301; Jalapeno Peppers; Serrano Peppers
Dear Port Director:
This is our decision on protest 2304-96-100301, concerning your classification of jalapeno or serrano peppers in an aqueous solution of salt and citric acid under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The subject commodity is jalapeno or serrano peppers in an aqueous solution of salt and citric acid in the following ratio: jalapeno peppers 60.0%, water 31.6%, salt 8.0%, citric acid .4%. Protestant’s submission dated February 3, 1997. The merchandise was not analyzed by a Customs Laboratory.
The protestant seeks review of the classification of seven entries entered April 12, 24, May 3, 8, July 5, 23, and August 19, 1996, and liquidated August 2, 9, 16, 23, October 18, November 8, 29, of 1996. A protest was filed October 11, 1996. On October 2, 1998, a letter requesting additional information, including any processes, of whatever nature, which the merchandise undergoes, was sent to protestant’s representative. No response was received.
ISSUE:
Is the protest timely?
Whether jalapeno or serrano peppers in the solution described above are “provisionally prepared,” and “unfit for human consumption”?
LAW AND ANALYSIS:
Timeliness
In order for a protest to be timely, it must be filed within 90 days after, but not before, the date of notice of liquidation. 19 U.S.C. 1514 (c)(3); 19 CFR § 174.12 (e)(1); U.S. v. Reliable Chemical Co., 66 CCPA 123, C.A.D. 1232,605 F.2d 1179 (1979) (where protest filed prior to liquidation was ruled untimely). Here, the protest was filed October 11, 1996. Three of the entries were protested prior to liquidation and are therefore untimely. The remaining four are timely protested.
Classification
Merchandise imported into the U.S. is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs.
The following headings are relevant to the classification of this merchandise:
0711 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:
0711.10.00 Onions
0711.20 Olives
0711.30.00 Capers
0711.40.00 Cucumbers including gherkins
0711.90 Other vegetables; mixtures of vegetables
0711.90.20 Leguminous vegetables
0711.90.40 Mushrooms
0711.90.60 Other vegetables; mixtures of vegetables
2005 Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006:
2005.10.00 Homogenized vegetables
2005.20.00 Potatoes
2005.40.00 Peas
2005.51 Beans
2005.60.00 Asparagus
2005.70 Olives
2005.80.00 Sweet corn
2005.90 Other vegetables and mixtures of vegetables:
2005.90.10 Carrots in airtight containers
2005.90.20 Onions
2005.90.30 Sauerkraut
2005.90.40 Water chestnuts
Fruits of the genus Capsicum (peppers) or of the genus Pimenta (e.g. all-spice):
2005.90.50 Pimientos (Capsicum anuum)
2005.90.55 Other
The protestant argues that the merchandise is properly classified in heading 0711, HTSUS, as “other vegetables” which are “provisionally preserved” and “unsuitable in that state 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. To prevent spoilage, a variety of methods are employed, among them are immersion in high-salt brine, application of chemical preservations, etc. Headquarters Ruling Letter 952738, dated January 27, 1993. Here, the vegetables are immersed in a brine solution, however, protestant has not demonstrated that it is sufficiently concentrated to halt microbiological growth and prevent spoilage.
Furthermore, merchandise must be unsuitable for immediate consumption to be classified in heading 0711, HTSUS. Invoice No. A 066, dated April 22, 1996, lists “Pizza Inn” and “Cici’s Pizza” as the apparent destinations of the peppers. This suggests that the brine and citric acid solution does not render the merchandise unsuitable for immediate consumption. In adddition, correspondence from Jalapeno Foods Company, dated February 3, 1997, states “The products packed in brine are further processed by our customers for human consumption. For example, nacho jalapeno halves may be stuffed and breaded.” This makes no reference to any cleansing process to remove the brine and citric acid solution from the peppers, thus suggesting that no such process is necessary prior to incorporation within a food product.
Heading 2005, HTSUS, covers those products of Chapter 7, HTSUS, which have been prepared or preserved by processes other than those specified in Chapter 7, HTSUS. Note 3, Chapter 20, HTSUS; Note 1 (a), Chapter 20, HTSUS. Jalapeno and serrano peppers, as “vegetables,” are products of Chapter 7, yet not prepared by a process specified therein, thus they fall within heading 2005, HTSUS. As jalapeno and serrano peppers are not described by any of the more specific provisions of this heading, they fall within subheading 2005.90, HTSUS, the residual provision for “other vegetables.”
HOLDING:
The protest is timely only as to the entries liquidated in August of 1996.
A composition of 60% jalapeno or serrano peppers, 31.6% water, 8% salt, and .4% citric acid is classified in subheading 2005.90.55, HTSUS.
The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division