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HQ 952738


January 27, 1993

CLA-2 CO:R:C:F: 952738 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 2001.90.3900; 2005.90.5510; 2005.90.9500

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.

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
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

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