• HQ H312071
• Sep 16, 2021

• Type : Classification • HTSUS : 2001.90.60
•  Related:   D87303; 964505; 957625; E85798; 069121; 959361; 952738; 957282; 963748; N296327   

OT:RR:CTF:FTM H312071 JER

Center Director
Agriculture & Prepared Products CEE
U.S. Customs and Border Protection
301 E. Ocean Blvd., Suite 1400
Long Beach, CA 90802

RE: Tariff classification of sushi ginger

Dear Center Director:

This letter is in response to your request for internal advice, initiated by counsel on June 18, 2020, on behalf of Ikko International Trading, LLC (“Ikko International” or “Importer”), and supplemented by your office on September 2, 2021. The internal advice request was made in accordance with U.S. Customs and Border Protection (“CBP”) Regulations in 19 C.F.R. §177.11, regarding the tariff classification of sushi ginger under the Harmonized Tariff Schedule of the United States (“HTSUS”). Our final decision is set forth below.

FACTS:

The merchandise at issue includes six (6) different sushi ginger products. The Shandong Yelin Foodstuff Co., Ltd. sushi ginger products include two varieties: Product Number GAR7613 and Product No. GAR7713. The Laiwu Yuyuan Foods Co., Ltd. Sushi ginger varieties include Product Numbers: GAR7112, GAR7113, GAR7212 and GAR7213. The Importer describes the products as follows:

The composition of the ginger at entry is primarily ginger, water and salt along with relatively small amounts of acetic acid, citric acid, aspartame and potassium sorbate. The ginger is imported in large 20-pound buckets that contain two sealed plastic bags each containing 10 pounds of sushi ginger. The bags are heat sealed to prevent leakage of the viscose solution. The ginger is not crushed or ground and is not certified as organic. Upon importation, the product is sold to food service establishments for use as a condiment or flavor enhancement for various dishes, most commonly sushi. Before serving, the sushi ginger must be removed from the bag and drained of the thick preserving liquid. The ginger must also be washed and de-salted to ensure that the liquid’s flavor does not interfere with the ginger’s own taste.

Importer submitted results from an independent laboratory, which provided the acid profiles of two unspecified sushi ginger samples (white and pink sushi ginger). The Anresco Laboratories results, dated April 9, 2020, found that the white sushi ginger contained 4.41 percent (%) citric acid and 3.99% acetic acid; pink sushi ginger contained 2.93% citric acid and 4.16 acetic acid. In an October 16, 2020, correspondence, the Importer provided the following component ingredients for each of the subject sushi ginger product as follows:

Shandong Yelin Foodstuff Co., Ltd. Product Ingredients Percentages (%) by Weight:

GAR7613 Ginger 66.667% Water 29.349% Salt 2.600% Acetic Acid 0.600% Citric Acid 0.550% Aspartame 0.180% Potassium Sorbate 0.052% Color Red No. 0.002% GAR7713 Ginger 66.667% Water 29.349% Salt 2.600% Acetic Acid 0.600% Citric Acid 0.550% Aspartame 0.180% Potassium Sorbate 0.052%

Laiwu Yuyuan Foods Co., Ltd. Product Ingredients Percentages (%) by Weight

GAR7112 and GAR7113 Ginger 66.6667% Water 30.3607% Salt 2.0000% Acetic Acid 0.4900% Citric Acid 0.3333% Aspartame 0.1083% Potassium Sorbate 0.0333% Sodium Saccharin 0.0047% Color Red No. 40 0.0030% GAR7212 and GAR7213 Ginger 66.6667% Water 30.3637% Salt 2.0000% Acetic Acid 0.4900% Citric Acid 0.3333% Aspartame 0.1083% Potassium Sorbate 0.0333% Sodium Saccharin 0.0047%

CBP laboratory analysis found the respective acetic acid content by weight of the imported sushi ginger products as follows:

CBP Laboratory Report NY20191749, dated, March 5, 2020: GAR7613 (Pink) Acetic Acid 0.62%; CBP Laboratory Report NY20200107, dated February 27, 2020: GAR7713 (White) Acetic Acid 0.84%; CBP Laboratory Report NY20190225, dated April 30, 2019: GAR7112 Acetic Acid 0.52%; CBP Laboratory Report NY20190228A, dated July 22, 2019: GAR7113 Acetic Acid 0.55%; CBP Laboratory Report NY20190218, dated February 26, 2019: GAR7212 Acetic Acid 0.53%; CBP Lab Report NY20190228, dated July 22, 2019: GAR7213 Acetic Acid 0.56%.

On November 10, 2020, a meeting was held with counsel for Ikko International to discuss the tariff classification of the subject sushi ginger products. On behalf of Ikko International, counsel submitted a supplemental letter, received March 2, 2021, in support of their initial internal advice request. CBP has taken all of the information submitted by the Importer into consideration while preparing this decision.

ISSUE:

Whether sushi ginger is properly classified under heading 0910, HTSUS, as a spice or condiment, or whether it is classified under heading 2001, HTSUS, as a vegetable or other edible parts of plants, prepared or preserved by vinegar or acetic acid, or whether it is classified under heading 2008, HTSUS, as an edible part of plants otherwise prepared or preserved by a process not elsewhere specified.

LAW AND ANALYSIS:

Merchandise imported into the United States 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 for all purposes. 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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.

The HTSUS headings at issue are as follows:

0910 Ginger, saffron, turmeric (curcuma), thyme, bay leaves, curry, and other spices:

Ginger:

0910.11.00 Neither crushed nor ground…

* * *

2001 Vegetables, fruit, nuts and other edible parts of plants, prepared or preserved by vinegar or acetic acid:

* * *

2001.90 Other:

Other:

2001.90.60 Other…

* * *

2008 Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included:

Other, including mixtures other than those of subheading 2008.19:

* * *

2008.99 Other:

2008.99.63 Sweet ginger…

Other:

2008.99.91 Other…

Chapter 20

* * *

GENERAL   This Chapter includes:   Vegetables, fruit, nuts and other edible parts of plants prepared or preserved by vinegar or acetic acid.

The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTS and are thus useful in ascertaining the proper classification of the merchandise. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The General Explanatory Notes to Chapter 9 provide:

This Chapter covers:   (1)   Coffee, tea and maté.   (2)   Spices, i.e., a group of vegetable products (including seeds, etc.), rich in essential oils and aromatic principles, and which, because of their characteristic taste, are mainly used as condiments.

These products may be whole or in crushed or powdered form. EN 09.10 provides, in pertinent part, as follows:

The heading includes:   (a)   Ginger (including fresh ginger, provisionally preserved in brine, unsuitable in that state for immediate consumption; ginger preserved in syrup is excluded (heading 20.08).

The Explanatory Notes to heading 2001, HTSUS, provides, in pertinent part, that:

This heading covers vegetables (see Note 3 to this Chapter), fruit, nuts and other edible parts of plants prepared or preserved by means of vinegar or acetic acid, whether or not containing salt, spices, mustard, sugar or other sweetening matter. These products may also contain oil or other additives. They may be in bulk (in casks, drums, etc.) or in jars, bottles, tins or airtight containers ready for retail sale. The heading includes certain preparations known as pickles, mustard pickles, etc.

* * * At issue is the tariff classification of imported sushi ginger. According to the Importer, the subject sushi ginger consists of two varieties of sliced ginger root (white and pink) preserved in a what the Importer describes as a “vinegar-like” solution. The Importer asserts that the sushi ginger should be classified in heading 0910, HTSUS, as a spice which is mainly used as a condiment. Importer notes that ginger is provided for eo nomine in heading 0910, HTSUS, explaining that the General Explanatory Note 2 to Chapter 9 states that the spices of this chapter include those that are “mainly used as condiments” and that such products may be whole, crushed or powdered. General Explanatory Note 2 to Chapter 9 further provides that “these spices include those containing added … substances such as salt or chemical antioxidants added, usually in small quantity, to preserve the products and prolong their flavoring powers.”

In a supplemental submission, counsel for Ikko International states the following:

The solution is designed so that it can provisionally preserve the ginger for transportation to the United States but not fundamentally alter the taste of the ginger.  Nevertheless, the ginger is not readily edible in its imported condition.  The solution contains a high degree of salt and vinegar; therefore, the ginger must be cleansed of the solution before being served to customers[.]

In support of its argument, the Importer argues that the subject sushi ginger is described by the ENs to heading 0910, HTSUS, which explains, in pertinent part, that the heading includes “fresh ginger, which is provisionally preserved in brine, unsuitable in that state for immediate consumption” EN 09.10(a). The Importer argues that the vinegar-like solution in which the subject sushi ginger is preserved and transported renders the subject ginger not edible or ready for consumption upon importation and is thus similar to the “provisional brine solution” described in EN 09.10(a). Importer claims that prior to consumption, the sushi ginger must be removed from the “provisional brine solution” and desalinated.

Importer contends that the subject sushi ginger is similar to a sushi ginger product addressed in New York Ruling Letter (“NY”) D87303, dated February 3, 1999. In NY D87303, CBP classified a sushi ginger product which was ultimately used as ginger in syrup under heading 0910, HTSUS. The ginger product in NY D87303 was described as “salted ginger in citric acid” and consisted of 76.76% ginger, 22.79% salt, and 0.45% citric acid. Importer opines that the subject sushi ginger is similar to the ginger of NY D87303 and should be classified under heading 0910, HTSUS, in accordance with General Explanatory Note 2 to Chapter 9 and EN 09.10(a).

In order to determine the proper heading under which the subject sushi ginger product is classified, we must first establish the nature of the product, the manner and method of production and examine the solution in which it is preserved and prepared. Initially, we note that neither the term spice, condiment, “sushi ginger” nor the provisional brine described in EN 09.10(a) are defined in the respective Chapters of the HTSUS, nor are they defined elsewhere in the Nomenclature or the ENs. In the absence of a definition of a term in the HTSUS or ENs, the term’s correct meaning is its common and commercial meaning. Nippon Kogasku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673, F.2d 1268 (1982).

Sushi ginger is a culinary product that is served in sushi bars and is used to cleanse the palate between sushi courses. It is prepared via a process of slicing ginger root into thin slices, which are later cured with salt and citric acid (or other acid), and later immersion in a brine solution which either pickles or marinates the once fresh ginger into the edible sushi ginger served in sushi bars and other Japanese restaurants. Gari- Pickled Sushi Ginger, https://www.justonecookbook.com/pickled-ginger/?nonitro=1. Technically, sushi ginger is neither a spice nor condiment as these terms are considered in their traditional sense. A condiment is something used to enhance the flavor of food especially. See https://www.merriam-webster.com/dictionary/condiment. A spice is defined as any of various aromatic vegetable products (such as pepper or nutmeg) used to season or flavor foods. See https://www.merriam-webster.com/dictionary/spice. By contrast, sushi ginger is a palate cleanser which used to refresh the palate. “A bite of sushi ginger between the different pieces of sushi allows you to distinguish the distinct flavors of each fish.” Why is Pickled Ginger Served with Sushi? https://www.thekitchn.com/why-is-pickled-ginger-served-with-sushi-228461. While ginger is used as a spice or herb, in its condition as imported and the manner in which it is used, it is more akin to a carrot or turnip in that it is a root (rhizome) that has been sliced into thin slivers for consumption. Even if arguendo the subject sushi ginger is considered a spice or condiment, it is not the type of ginger described in EN 09.10(a).

Moreover, contrary to the Importer’s assertions, the vinegar-like solution in which the subject product is immersed and packaged does not render the sushi ginger inedible. Instead, the subject sushi ginger product is both edible and ready for immediate consumption in its condition as imported. At the time of importation, the sushi ginger does not require desalination or further processing to ready it for consumption. Instead, upon completion of the pickling or marinating process (discussed infra), the sliced ginger remains immersed in the brine solution until it is ready to serve. Gari- Pickled Sushi Ginger, https://www.justonecookbook.com/pickled-ginger/?nonitro=1.

More importantly, there is significant distinction between a “provisional brine solution” and a brine used to preserve and prepare the subject sushi ginger. The brine solution described in EN 09.10 (a) and in NY D87303 is a “provisional brine solution” which is primarily used to preserve the food product during transportation, food preparation or storage until a further use or process is made available. As a preservative, it is used to prevent deterioration of the food product while impacting the texture and flavor of the product. Furthermore, the distinction between a “provisional brine solution” and a brine used to preserve and prepare vegetable products has previously been addressed by CBP. In Headquarters Ruling Letter (“HQ”) 964505, dated January 24, 2001, for example, CBP classified chili peppers, which were preserved in a provisional brine solution, described under the terms of heading 0711, HTSUS, and described in EN 07.11. In HQ 964505, CBP noted that unlike the preserving process described in heading 2001, HTSUS, EN 07.11 explains that the vegetables of heading 0711, HTSUS, are those that have been treated solely to ensure their provisional preservation during transport or storage prior to use, provided they remain unsuitable for immediate consumption in that state.

The provisional brine solution in HQ 964505 consisted of: 48.36% water, 38.7% acetic acid (sic, acetic acid or vinegar), 12.96% salt, 0.16% aluminum sulfite, 0.21% calcium chloride, 0.10% sodium benzoate, 0.02% yellow #5, 0.13% sodium bisulfate. Additionally, in HQ 964505, the chili peppers required removal from the provisional brine to make the peppers salable and edible. Similarly, in HQ 957625, dated February 8, 1996, CBP classified jalapeno peppers, pimento pepper hulls, and cauliflower buttons under heading 0711, HTSUS, rather than heading 2001, HTSUS, because the peppers and cauliflower foods had been preserved in a provisional brine solution and were not immediately ready for consumption. The peppers were immersed in a brine containing 1.18% to 1.20% acetic acid and 10.5% salt. The provisional brine described in 0711, HTSUS, and the ENs to heading 0910 (EN 09.10(a)) contemplate a brine solution which is provisional (i.e., temporary) and requires removal, rinsing or desalination prior to consumption. See HQ 964505, HQ 957625. As a salt-based solution, the provisional brine solution of heading 0910, HTSUS, is not intended to be consumed but instead is used to prevent deterioration while adding flavor and tenderizing the food product.

The distinction between a provisional brine solution and the type of brine solution used to preserve and prepare the subject sushi ginger lies in the percentage of salt and acid content and the manner of preparation. As HQ 964505 and HQ 957625 indicate, the salt and acid content in a provisional brine solution is significantly higher than a brine solution used to preserve and prepare foods products (i.e., to pickle, marinate or acidify). Specifically, a classic brine is made from a ratio of 1 cup of salt to 1 gallon of water or 10 ounces of salt (by weight) per gallon of water. Since one cup of table salt weighs in at 10 fluid ounces and a gallon of water contains 128 fluid ounces, a classic brine consists of 12.8% salt to water ratio by weight. Salt to Brine Ration is Important to Know, https://www.thespruceeats.com/salt-to-brine-ratio-336235. A classic brine requires that the meat, fish or vegetables be removed from the brine and rinsed (desalinated) or cooked prior to consumption. Hence, foods tenderized or brined in a classic brine are not immediately ready for consumption prior to removal and rinsing. Based on the classic brine formula and the rationale discussed in HQ 964505 and HQ 957625, a “provisional brine” is one that requires removal and desalination prior to consumption. Likewise, the classic brine formula and the rationale in the aforementioned CBP Rulings inform us that a provisional brine such as the “provisional brine” described in EN 09.10 (a) (and the ENs to 0711) must consist of 10% to 12% salt by weight or more to meet the definition of a “provisional brine.”

Unlike the ginger in NY D87303, the subject vinegar-like solution does not contain 22.79 % salt and is therefore vastly different from the ginger product in NY D87303. Similarly, the subject sushi ginger products do not contain a high degree of salt or vinegar as contended by the Importer. In fact, the sushi ginger products do not contain vinegar at all. The percentage of salt by weight in each of the subject sushi ginger products is 2.0% and 2.6%, respectively. Thus, the percentage of salt contained in the subject sushi ginger products do not meet the 10% to 12% salt by weight minimum requirement to be considered a provisional brine.

Likewise, the vinegar-like solution in which the once fresh ginger is immersed is not merely used for purposes of transportation and storage but rather this solution has the function of pickling or marinating the ginger while preparing it for its ultimate use as a “sushi ginger.” Based on the relative percentages of its salt and acetic acid, the instant brine solution is the type of brine which is intended to pickle, marinate or otherwise acidify the ginger in a manner that is suitable for immediate consumption. There are two types of pickling. Pickling in a brine solution with only acid (such as vinegar) and salt results in the vegetables being both preserved and fermented. The salt encourages certain good microbes to flourish, while preventing the growth of other microbes that cause the food to go bad. Examples include butter pickles, olives, preserved lemons, kimchi, and sauerkraut. A pickling brine with only acid and no salt results in the vegetables being preserved and unfermented. The vinegar stops the growth of the spoilage-causing microbes and helps to flavor whatever is being pickled, without stimulating the microbe growth that causes food to ferment. What’s the Difference Between, Pickling, Brining, Marinating and Curing, It All Comes Down to Salt versus Acid, https://www.eater.com/2019/8/7/20756710/whats-the-difference-pickling-brining-marinating-curing.

Similarly, there are two main types of pickled ginger used in Japanese cuisine. The first, is beni shoga, which is made by pickling thin strips of ginger in plum vinegar. The other variety is sushi gari or what is known as sushi ginger in the traditional presentation of sushi. It is used to cleanse palate in between different sushi courses. What is Sushi Ginger, https://www.japancentre.com/en/pages/68-sushi-ginger (last visited, April 8, 2021). Sushi gari is made by marinating flat strips of young ginger in (rice) vinegar and sugar. What is Sushi Ginger, https://www.japancentre.com/en/pages/68-sushi-ginger (last visited, April 8, 2021). Additionally, when young ginger is pickled, it turns slightly pink. However, the use of food coloring is another method used to turn sushi ginger pink. By contrast, older ginger remains in its natural pale-yellow color when pickled. Gari – Pickled Sushi Ginger, https://www.justonecookbook.com/pickled-ginger/?nonitro=1. Gari – Japanese Sushi Ginger, https://www.thespruceeats.com/pickled-ginger-2031497; How to Make Sushi Ginger, https://www.greatbritishchefs.com/how-to-cook/how-to-make-sushi-ginger (last visited, April 8, 2021).

The subject sushi ginger, and sushi ginger generally, is prepared and preserved in a manner that is consistent with the terms set forth in Note 3 to Chapter 20, HTSUS. Note 3 to Chapter 20, HTSUS, provides, in relevant part, that “headings 2001, 2004 and 2005 cover, as the case may be, only those products of chapter 7 (edible vegetables, and certain roots and tubers), which have been prepared or preserved by processes other than those referred to in note 1(a).” Similarly, General Explanatory Note 1 to Chapter 20 explains that Chapter 20 incudes “Vegetables, fruit, nuts and other edible parts of plants prepared or preserved by vinegar or acetic acid.” Both the pickling and marinating process involves the use of vinegar or acetic acid or a combination thereof to transform fresh slices of ginger into sushi ginger. As previously discussed, sushi ginger is prepared via the process of pickling and/or marinating thin slices of ginger in a vinegar or acetic acid-based brine solution. This manner of preparation and preservation is specifically described in Note 3 to Chapter 20, HTSUS, and the General ENs to Chapter 20.

Similarly, in both appearance use and relative ingredient percentages, the subject sushi ginger is substantially similar, if not identical, to sushi ginger products which CBP has previously been classified headings 2001, HTSUS, and heading 2008, HTSUS. For instance, in NY E85798, dated September 9, 1999, CBP classified thin slivers of ginger, which had been brined in white wine vinegar and 2.7% acetic acid content under heading 2001, HTSUS. It follows that, because of its method of preparation and ingredient content, the subject sushi ginger is not a product of heading 0910, HTSUS, but instead is prima facie classifiable in a heading of Chapter 20.

Whether the sushi ginger product is classified under the 2001, HTSUS, or 2008, HTSUS, lies in the percentage of acetic acid content and the method of preparation and preservation. Heading 2008, HTSUS, is residual provision available to those goods that are not more specifically provided for in other headings of Chapter 20. Heading 2001, HTSUS, covers, among other things, “vegetables other edible parts of plants prepared or preserved by means of vinegar or acetic acid.” The ENs to heading 2001, HTSUS, state, in relevant part, that the heading covers, “fruit, nuts and other edible parts of plants prepared or preserved by means of vinegar or acetic acid, whether or not containing salt, spices, mustard, sugar or other sweetening matter.” The ENs to 2001, HTSUS, further state that the heading includes certain preparations known as pickles, mustard pickles, etc. The process used to make the subject sushi ginger is substantially similar to the process used to turn cucumbers into pickles, cabbage into sauerkraut or fresh caper buds into pickled capers. See https://www.thespruceeats.com/fermenting-red-cabbage-sauerkraut-1327622; https://www.thespruceeats.com/how-to-make-capers-1327749 (last visited, April 8, 2021).

That pickled or marinated ginger (i.e., sushi ginger) is contemplated by the terms of heading 2001, HTSUS, is supported by the heading’s reference to pickled cucumbers (also known as “pickles”) and the ENs to heading 2001, HTSUS. Similarly, EN 20.01 explains that the heading “includes certain preparations known as pickles, mustard pickles, etc.” In their raw or fresh stage, “the principal products preserved by the methods described in this heading are cucumbers, gherkins, onions, shallots, tomatoes, cauliflowers, olives, capers, sweet corn, artichoke hearts.” EN 20.01. In each instance, the vegetable (cucumber, ginger or cabbage) requires the immersion of the vegetable into a vinegar or other acid-based pickling solution. The end result is a pickled or marinated vegetable product that has been preserved or prepared by vinegar or acetic acid.

It is well settled that for food products to be considered to be prepared or preserved in acetic acid, for purposes of heading 2001, HTSUS, those products must contain a minimum of 0.5% acetic acid content. Tak Fat Trading vs. United States, 396 F.3d 1378, 1381 (2005), citing, HQ 069121, dated May 20, 1983, (the court in Tak Fat Trading acknowledged and reiterated CBP’s acetic acid test in determining whether certain mushrooms were pickled, acidified or marinated for purposes of adjudicating an antidumping case). Moreover, the acetic acid test is not limited only to foods that have been pickled but can include foods that have been marinated, acidified or otherwise prepared or preserved in manner described in Chapter 20, HTSUS. The acetic acid test has long been utilized in CBP rulings and remains unchanged. See HQ 964505, dated January 24, 2001, HQ 959361, dated April 17, 1997, and, HQ 952738, dated January 27, 1993.

Under the plain language of heading 2001, HTSUS, these food products must be prepared or preserved by either vinegar or acetic acid, or a combination of the two. If, the product is prepared or preserved solely by acetic acid, the long-standing rule requires that the solution contain a minimum of 0.5% acetic acid. This requirement for 0.5% acetic acid, however, does not preclude classification of a product preserved solely by vinegar or other forms of acidic formulas. The rule only requires that if the product is prepared or preserved solely by acetic acid, that the acetic acid content be at least 0.5%.

When considering the classification of vegetables and other edible parts of plants which have been prepared or preserved by means of vinegar or acetic acid, we note that vinegar itself contains acetic acid. Vinegar is about 4-6% acetic acid in water. See https://www.vdh.virginia.gov/epidemiology/epidemiology-fact-sheets/acetic-acid/ (last visited, April 8, 2021). A diluted solution of acetic acid produced by fermentation and oxidation of natural carbohydrates is called vinegar. Acetic acid | Definition, Formula, Uses, & Facts | Britannica, at https://www.britannica.com/scince/acetic acid (last visited, April 8, 2021). Acetic acid is a byproduct of fermentation, and gives vinegar its characteristic odor and sour taste. It follows that a solution that contains both vinegar and acetic acid will have a higher acetic acid content then a solution consisting of only acetic acid. Citric acid is also used to acidify (sushi) ginger and other vegetable products. Citric acid like vinegar, is used in the fermentation process of foods such as those described in Chapter 20. Citric acid occurs naturally in citrus fruits (e.g., lemons) and is widely used as an acidity regulator, flavoring and preservative in food and drinks. Citric Acid v. Vinegar, at https://thegreenboutique.co.uk/blogs/eco-suggestions/citric-acid-vs-vinegar. Accordingly, a solution that contains a combination of acetic acid, vinegar and/or citric acid, will have the impact of preparing or preserving a vegetable product in a manner consistent with the terms of heading 2001, HTSUS.

In keeping with the longstanding acetic acid test, in order for foods to be classified under heading 2001, HTSUS, they must be preserved or prepared by either vinegar or at least 0.5% acetic acid or a combination of both vinegar and acetic acid. Under the terms of heading 2001, HTSUS, goods which do not consist of 0.5% acetic acid are not precluded form classification in the heading so long as the preserving or preparing solution consists of vinegar or a combination of both vinegar and acetic acid. And, so long as the vinegar or acid is the component ingredient that pickles, marinates or otherwise preserves and prepares the food product in a manner consistent with the terms of Note 3 to Chapter 20, HTSUS (or the General ENs to Chapter 20 (Gen. EN 1)).

For example, in NY N296327, CBP classified sushi ginger under heading 2001, HTSUS, despite the fact that it contained less than 0.5% acetic acid. The rationale in NY N296327 stems from the fact that the sushi ginger was not preserved or prepared solely by acetic acid but instead was preserved by a combination of acids which included, 0.86% distilled vinegar, 0.38% acetic acid, and trace amounts of citric acid, and malic acid. Hence, the decision in NY N296327 does not violate the 0.5% acetic acid test because the pickling solution contained a combination of both vinegar and acetic acid along with trace amounts of citric and malic acids.

According to the facts provided by Ikko International in its October 2020 submission, the acid percentages by weight for both the GAR7613 (Pink) and the GAR7713 (White) Shandong Yelin Sushi Ginger is 0.60% acetic acid and 0.50% citric acid. We note, however, that the CBP Laboratory Reports found the acetic acid content at 0.62% (for GAR7613) and an acetic acid content of 0.84% (for GAR7713). Similarly, with respect to the Laiwu Yuyuan sushi ginger products, the acid ingredient percentages by weight provided are 0.49% acetic acid 0.4900% and 0.33% citric acid for both the GAR7112 (Pink) and GAR7113 (Pink) products. Again, we note that the CBP laboratory analysis found the percentages to be: 0.52% acetic acid for the GAR7112 and 0.55% for the GAR7113. Lastly, product numbers GAR7212 (White) and GAR7213 (White) are said to contain 0.49% acetic acid and 0.33% citric acid with the CBP Laboratory finding GAR7212 to contain 0.53% acetic acid and the GAR7213 to contain 0.56% acetic acid.

Regarding the acetic acid levels for two unidentified sushi ginger products, Importer argues that the CBP Laboratory results were questionable in light of the independent laboratory results that Importer submitted with its inquiry. The Importer’s independent laboratory results for two unspecified sushi products are as follows: white sushi ginger, 4.41% of citric acid and 3.99% acetic acid; pink sushi ginger 2.93% citric acid and 4.16% acetic acid for the pink sushi ginger. Note that Importer’s independent laboratory results differ from the citric and acetic acid percentages provided by Importer in its October 2020 submission. Accordingly, the CBP laboratory analysis are based on Importer’s October 2020 submission.

In cases such as this, where an outside laboratory report is submitted that differs from the CBP laboratory report, the CBP laboratory report cannot be disregarded and takes precedence over the outside report. See HQ 957282, dated March 28, 1995 (citing Customs Directive 099 3820-002, dated May 4, 1992). “It is well settled that the methods of weighing, measuring, and testing merchandise used by [CBP] officers and the results obtained are presumed to be correct.” Aluminum Company of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398 (1973). Absent a conclusive showing that the testing method used by the CBP laboratory is in error, or that the CBP’s laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (1978). Furthermore, CBP cannot rely on outside reports that may or may not utilize different testing methods and remain consistent in its tariff classification. Therefore, CBP must rely on its own laboratory analysis when determining the proper tariff classification of merchandise and need not consult an independent laboratory. See HQ 963748, dated November 20, 2000.

In the case of the GAR7613 and the GAR7713, sushi ginger products which contain 0.60% or 0.62% acetic acid and 0.60% or 0.84% acetic acid, respectively, both meet the requirements of acetic acid test discussed in Tak Fat Trading. With respect to product numbers GAR7112, GAR7113, GAR7212 and GAR7213, the 0.49% acetic acid in combination with the 0.33% citric acid is a sufficient acid content to pickle or marinate raw ginger into sushi ginger in a manner consistent with the terms of heading 2001, HTSUS. However, the acetic acid percentages provided in Importer’s 2020 submission differ from the findings of the CBP Laboratory. The findings of the CBP Laboratory indicate that each of Laiwu Yuyuan Sushi Ginger products contain 0.52%, 0.55%, 0.53% and 0.56% acetic acid, respectively. These acetic acid levels exceed the minimum 0.5% acetic acid content required to satisfy the threshold test cited in Tak Fat Trading.

HOLDING:  By application of GRI 1, each of the subject sushi ginger products are classified in heading 2001, HTSUS. Specifically, sushi ginger is classified in subheading 2001.90.6000, HTSUSA, which provides for “Vegetables, fruit, nuts and other edible parts of plants, prepared or preserved by vinegar or acetic acid: Other: Other: Other.” The general, column one rate of duty is 14% ad valorem.

You are to mail this decision to the requestor no later than 60 days from the date of the decision. At that time, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and to the public on the Customs Rulings Online Search System (“CROSS”), at https://rulings.cbp.gov/, and other methods of public distribution. 
Sincerely,


For Craig T. Clark, Director
Commercial and Trade Facilitation Division