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HQ 964505





January 24, 2001

CLA-2 RR:CR:GC 964505 nel

CATEGORY: CLASSIFICATION

TARIFF NO.: 0711.90.60

Port Director
U. S. Customs Service
200 W. Mariposa Road
Nogales, AZ 85621

RE: Protest 2604-00-100006; Cascabella chili peppers, products of Mexico

Dear Port Director:

This is our decision on protest 2604-00-100006 timely filed on March 17, 2000, by counsel on behalf of Lisa Inc., against your decision on the classification of certain Cascabella chili peppers imported in barrels in a brine solution, under the Harmonized Tariff Schedule of the United States (HTSUS). The protest covers 37 entries dated from January 16, 1999, through September 21, 1999. All were liquidated on February 25, 2000.

FACTS:

The merchandise is described as peppers of the scientific name Capsicum annuum. These peppers were placed into a provisional preservative brine in Mexico for delivery to customers who removed and replaced the provisional brine to make the peppers salable and edible. According to counsel’s submission, this provisional brine served to prevent fermentation and spoilage of the peppers during transportation and storage.

There are no U.S. Customs laboratory reports available. Counsel submitted a letter from the M.J. Rosenmayer Co., dated March 31, 2000, which described the composition of the imported brine solution as follows: 48.36% water, 38.7% aceric 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. The Rosenmayer letter further stated that the peppers have not undergone fermentation prior to exportation.

Counsel submitted letters from several processors in the United States. These processors attested to the fact that the imported peppers were removed from the preservative brine, washed and agitated in fresh potable water, and then repacked, and sometimes pasteurized, in a new brine solution with much lower salt and vinegar content. All purchasers and processors affirmed that the imported peppers were inedible and not salable in their imported condition.

The Protestant claimed classification of the peppers in subheading 0711.90.60, HTSUS, which 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.

Customs classified the merchandise in chapter 20, heading 2001 or 2005, HTSUS, depending on acetic acid content. Subheading 2001.90.39, HTSUS, provides for: Vegetables, fruits, nuts and other edible parts of plants, prepared or preserved by vinegar or acetic acid: Other. Subheading 2005.90.55, HTSUS, provides for: Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006: Other vegetables and mixtures of vegetables: Fruits of the genus Capsicum (peppers) or of the genus Pimenta (e.g., allspice): Other.

ISSUE:

What is the tariff classification of the Cascabella chili peppers, imported in barrels in a preservative brine solution from Mexico, under the HTSUS.

LAW & ANALYSIS:

The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTSUS. The majority of imported 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, then the remaining GRIs may be applied.

The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System constitute the official interpretation of the Harmonized System at the international level. Though not dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

The following headings are relevant to the classification of these peppers in preservative brine:

Heading 0711, HTSUS, which 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.

Heading 2001, HTSUS, which provides for: Vegetables, fruits, nuts and other edible parts of plants, prepared or preserved by vinegar or acetic acid.

Heading 2005, HTSUS, which provides for: Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006.

EN 07.11 states 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. Excluded from this heading are those vegetables that, in addition to being preserved in brine, were also specially treated (e.g., by lactic fermentation).

The Cascabella chili peppers meet the requirements of heading 0711, HTSUS. According to the facts presented, they were not fermented, they were immersed in a solution that assured their preservation until used for processing, and they were unsuitable for consumption in their imported condition. Based on similar facts, HQ 957625 dated February 8, 1996, held that untreated, unfermented jalapeno peppers, pimento pepper hulls, and cauliflower buttons, imported in a brine of 10.5% salt and 1.2% acetic acid were unpalatable and unsuitable for consumption as imported. Similar to the peppers in the instant case, these vegetables were immersed in brine, which prevented deterioration, but had to be de-salted and further processed for human consumption. These vegetables were classified under subheading 0711.90.60, HTSUS.

Under these circumstances, classification of the instant peppers in any heading of chapter 20 cannot result. Chapter 20, Note 1(a) precludes from classification in that chapter vegetables prepared or preserved by processes described in chapter 7. Since heading 0711, HTSUS, provides for vegetables preserved in brine, but unsuitable in that state for immediate consumption, the instant peppers in preservative brine fall under heading 0711, HTSUS, not under chapter 20, HTSUS.

HOLDING:

Protest 2604-00-100006 should be APPROVED.

The Cascabella chili peppers, imported as described in the facts, are classified in subheading 0711.90.60, HTSUS, which 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 accordance with Section 3(A)(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, Notice of Action, 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 of the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,


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