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HQ 959361




April 17, 1997

CLA-2 RR:TC:FC 959361 RC

CATEGORY: CLASSIFICATION

TARIFF NO.: 2001.90.3900

Mark K. Neville, Jr., Esq.
International Trade Counsellors
51 Marion Road
Westport, Connecticut 06880

RE: Request for Reconsideration of New York Ruling Letter (NYRL) A81694; Classification of Jalapeno Peppers Prepared by Salt and Acetic Acid

Dear Mr. Neville:

This is in response to your letter, dated June 14, 1996, on behalf of your client, Anchor Food Products, Inc., requesting reconsideration of NYRL A81694, dated April 17, 1996, concerning the classification of jalapeno peppers prepared by salt and acetic acid under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Further submissions were made on August 1, 1996 and October 9, 1996.

FACTS:

The merchandise is described as jalapeno peppers in various forms including halves, slivers, diced, and shells that have been cleaned of seeds, blanched in a 190 degree solution of acetic acid and hot water, and hot filled into a five gallon pail or poly bag. A brine solution of 2.45 percent salt is added, the pail or poly bag is sealed and stored in a refrigerated state for up to one year. Based upon lab analysis submitted by the importer, the peppers contain between 0.54 percent and 0.87 percent acetic acid. The October 9, 1996 submission indicates that the acetic acid content may have been in the range of .8 to 1.0 percent. After importation, the importer intended to wash the peppers and use them to make several appetizer products.

ISSUE:

Whether the above-described jalapeno peppers are classifiable as provisionally preserved vegetables, that is, unsuitable for consumption at the time of importation in heading 0711, HTSUS; or as vegetables prepared or preserved by acetic acid, in heading 2001, HTSUS.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, 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 headings and legal notes do not otherwise require, the remaining GRIs may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRIs.

Subheading 0711.90.6000, HTSUSA, provides for "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: Other vegetables; mixtures of vegetables: Other vegetables; mixtures of vegetables."

In considering whether these jalapeno peppers would be considered as provisionally preserved under the Harmonized System, we consulted the ENs. The relative explanatory note (EN 07.11) specifies that vegetables which have been treated solely to ensure their provisional 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 (i.e., by soda solution, by lactic fermentation).

In general, vegetables are provisionally preserved by being placed into a medium or subjected to a treatment that, for a limited time, halts or significantly reduces undesirable microbiological deterioration. The purpose of provisional preservation is to prevent the loss of the product while in transit or awaiting processing. Invariably, to accomplish this, the quantity of substances added to the liquid medium (when immersed in solution) or applied to the vegetable (in the case of external treatment) is such that the vegetable itself is rendered unpalatable, and the preservative substances must be thoroughly removed when the final processing begins. See Headquarters Ruling Letter (HRL) 952738 (January 27, 1993).

It is our understanding that provisional preservation of unfermented jalapeno peppers cannot be achieved by a liquid solution of 2.45 percent salt and between 0.54 and 0.87 percent (or up to 1.0 percent) acetic acid. Microbiological deterioration is arrested not by the solution, but by the reduction of temperature, i.e., refrigeration. We note, moreover, that vegetables, like these jalapeno peppers, containing salt and acetic acid in the stated amounts, would be edible as imported. Therefore, the peppers do not fall into heading 0711, HTSUS.

The attorney for the importer requested that Customs discuss the relevance of blanching in classifying the instant jalapenos. The role of blanching in "provisional" preservation of the instant jalapenos is not relevant to their classification outside of heading 0711, HTSUS. The ENs clearly state that "provisional" preservation of fruit or vegetables requires application of a preservative chemical substance in a quantity that would necessarily render the fruit or vegetable unpalatable. Blanching does not render the instant jalapenos unpalatable.

It appears that the instant jalapeno peppers are specifically prepared with these mere amounts of salt and acetic acid for the savory properties they impart to the peppers. If considered to be prepared or preserved by vinegar or acetic acid, the jalapeno peppers would be classifiable in heading 2001 and, if prepared or preserved by other than vinegar or acetic acid, would be classifiable in heading 2005. 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 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. This position is unchanged. See, HRL's 085838, dated December 21, 1989; 952738, dated January 27, 1993; and 956850, dated March 22, 1996.

The jalapeno peppers contain more than .5 percent acetic acid. Therefore, they fall into subheading 2001.90.3900, HTSUSA, the provision for "Vegetables, fruit, nuts and other edible parts of plants, prepared or preserved by vinegar or acetic acid: Other: Other: Other."

HOLDING:

The instant jalapeno peppers properly fall into the provision for vegetables prepared or preserved by vinegar or acetic acid, subheading 2001.90.3900, HTSUSA, dutiable at 4.8 percent ad valorem as products of Mexico (1996). The applicable duty rate in 1997 is 2.4 percent ad valorem.

NYRL A81694 is affirmed.

Sincerely,

John Durant, Director
Tariff Classification

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