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HQ 957041




November 10, 1998

CLA-2 RR:CR:GC 957041K

CATEGORY: CLASSIFICATION

TARIFF NO.: 2005.90.55

Port Director
U.S. Customs Service
P.O. Box 3130
Laredo, Texas 78044

RE: Protest 2304-93-100478; Jalapeno Peppers; Acetic Acid Content

Dear Port Director:

The is our decision on Protest 2304-93-10078 filed against your classification of Jalapeno peppers in a liquid solution. In preparing this decision, consideration was given to further submissions dated May 1, May 19, and June 12, 1997, by counsel for the protestant, as well as oral arguments made at a meeting in Customs Headquarters on May 2, 1997.

FACTS:

The 19 consumption entries covering the imported merchandise from Mexico were reported as being liquidated between September 17 and September 24, 1993, under the provision for other vegetables prepared or preserved otherwise than by vinegar or acetic acid, in subheading 2005.90.55, Harmonized Tariff Schedule of the United States (HTSUS) (1993), with duty at the general rate of 17.5 percent ad valorem. A timely protest under 19 U.S.C. 1514 was received on December 15, 1993. The protestant requested reliquidation of the entries under the provision for other vegetables prepared or preserved by vinegar or acetic acid, in subheading 2001.90.39, HTSUS (1993), with duty at the general rate of 12 percent ad valorem.

The merchandise consists of a variety of canned Jalapeno peppers in a liquid solution that are whole, sliced or chopped that were prepared by a Mexican processor-shipper. The Customs laboratory tested samples of various products taken from 4 of the 19 shipments to determine the acetic acid contents. Of the approximately 8 samples tested, Customs found that 7 contained by
weight less than 0.5 % acetic acid reported as follows:

Customs Laboratory Report (CLR) 5-93-20796-001 for an entry dated April 27, 1993, reports that a sample product number 001, whole Jalapeno peppers, contained by weight approximately 0.4 % acetic acid.

CLR 5-93-20797-001 for an entry dated May 5, 1993, reports that a sample (product number not indicated) of sliced Jalapeno peppers, contained by weight approximately 0.3 % acetic acid.

CLR 5-93-20882-001 for an entry dated May 12, 1993, reports that a sample product number 0003, whole Jalapeno peppers, contained by weight approximately 0.3 % acetic acid.

CLR 5-93-20883-001, also covering the entry dated May 12, 1993, reports that a sample of product numbered 0006, a second product of whole Jalapeno peppers, contained by weight approximately 0.3 % acetic acid.

CLR 5-93-20885-001, also covering the entry dated May 12, 1993, reports that a sample product numbered 0014, a third product of whole Jalapeno peppers, contained by weight approximately 0.4 % acetic acid.

CLR 5-93-20884-001, also covering the entry dated May 12, 1993, reports that a fourth sample of product number 0021, of chopped Jalapeno peppers, contained by weight approximately 0.7 % acetic acid.

CLR 5-93-20894-001 for an entry dated June 1, 1993, reports that sliced Jalapeno peppers (product number not stated), contained by weight approximately 0.3 % acetic acid.

CLR 5-93-20895-001, also covering the entry dated June 1, 1993, reports that a sample of product 0014, another product of sliced Jalapeno peppers, contained by weight approximately 0.33 % acetic acid.

In addition, 24 other CLRs were submitted with the protest report covering other entries between April 28 and November 12, 1993, not subject to this protest, for Jalapeno peppers produced by the same foreign processor and imported by the protestant. Of the approximately 28 samples tested, 16 were reported to contain less than 0.5 % by weight of acetic acid, and 12 were reported to contain 0.5 % or more. Further CLRs for other samples produced by the same foreign processor but imported by another importer on April 27, 1993, were reported not to contain 0.5 % by weight of acetic acid.

According to the protestant, the foreign processor employs chemists that test the products for acetic acid content and the results of these tests confirm a 0.5 % by weight of acetic acid. Samples are sent to an independent laboratory for testing but not for purposes of testing for the acetic acid content of the products. There are other protests pending and the protestant has submitted the CLRs of the testing done by Customs for the acetic acid content of the products. The protestant asserts that of 21 samples tested by Customs for imports during 1993, 40 % of the CLRs confirm an acetic acid content of 0.5 % or higher.

ISSUE:

Whether the various varieties of Jalapeno peppers are prepared or preserved by vinegar or acetic acid.

LAW AND ANALYSIS:

Subheading 2005.90.55, HTSUS (1993), provides for other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, dutiable at the general rate of 17.5 percent ad valorem.

Subheading 2001.90.39, HTSUS (1993), provides for other vegetables ...prepared or preserved by vinegar or acetic acid, dutiable at the general rate of 12 percent ad valorem.

The HTSUS, and the Explanatory Notes to the Harmonized Commodity Description and Coding System, a guideline for use in determining classification under HTSUS, do not define what constitutes prepared or preserved by vinegar or acetic acid (found in vinegar). 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 HTSUS. See HRL Letters, 085838 dated December 21, 1989, 952738 dated January 27, 1993, and 953518 dated June 24, 1993.

The protestant does not contest the Customs position concerning the 0.5 % decision (HRL 069121) and does not contest the testing procedures performed at the Customs laboratories to determine the acetic acid content. The position of the protestant is basically the "best evidence" rule. That is, the protestant agrees that the entries covering products subject to the protest in which CLRs report less than a 0.5 % acetic acid contents should be liquidated under subheading 2005.90.55, HTSUS, and those products in which the CLRs report 0.5 % or more should be liquidated in subheading 2001.90.39, HTSUS. However, the protestant disagrees with Customs position concerning products covered by the entries in which Customs did not conduct testing for the acetic acid content.

From a coding system on the containers, the processor can trace the Jalapeno peppers to the manufacturing date. The processor, by laboratory tests performed by their chemists and their documents would show whether the products contain the minimum content of not less than 0.5 % by weight of acetic acid. Therefore, it is the position of the protestant, that those products in which Customs did not perform tests for the acetic acid contents, the "best evidence" as to the acetic acid is contained in the processor's own records and those products should be classified in subheading 2001.90.39, HTSUS.

Customs will consider the "best evidence" as we have done in Customs Headquarters Ruling Letter (HRL) 953518 dated June 24, 1993. In that case, Customs did not perform tests for two products covered by the entry but did conduct tests for similar imported products made by the same manufacturer. The protestant submitted an independent laboratory report for one of the products, showing that the product imported, sliced Jalapeno peppers, contained 0.7 % acetic acid and submitted a letter from a food consultant who concluded by a taste-test, that the product contained vinegar. We concluded, that based on the "best evidence" and in the absence of a test perform by Customs, the peppers were classified in subheading 2001.90.39, HTSUS. Similar information was not submitted for the other product, diced Jalapeno peppers. We concluded that the best evidence was the Customs tests on similar shipments which showed a content of less than 0.5 % and concluded that those products were classified in subheading 2005.90.55, HTSUS.

As noted previously, no independent laboratory reports were submitted covering the testing done on behalf of the processor to show the acetic acid content. The protestant provided test results for merchandise in one of the protested entries in which the tests performed by the employees of the processor showed an acetic acid content of .5% for one lot of merchandise and a .57% acetic acid content for another lot. Customs also performed laboratory tests on a sample of the merchandise from this entry and found the sample to have an acetic acid content of .36% (CLR 5-93-20885-001). Thus, there is an apparent conflict between the CLRs and the tests performed by the employees of the processor. In such a conflict, the CLRs are presumed to be correct.

We note that Customs performed extensive tests and that the tests show that many of the products claimed to have a 0.5% acetic acid content did not do so. We are also aware that it is possible that the acetic acid content may be higher at the time of processing than at the time of importation (see the conflicting results of the tests by the processor's employees and CLR 5-93-20885-001, described above). In this regard, imported merchandise must be classified with reference to its condition when imported. Based upon the facts, we conclude that the tests performed by the processor are not reliable.

HOLDING:

The merchandise is classified as other vegetables prepared or preserved otherwise than by vinegar or acetic acid, in subheading 2005.90.55, HTSUS, except that the merchandise tested by Customs and shown to contain 0.5 % or more by weight of acetic acid, is classified in subheading 2001.90.39, HTSUS.

You are instructed to deny the protest except for the products tested by Customs and shown to contain 0.5 % or more by weight of acetic acid.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision and any reliquidations of entries in accordance with this decision must be accomplished prior thereto. Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel via the Customs Rulings Module in ACS, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division
Office of Regulations and Rulings

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