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HQ 966869




November 26, 2003

CLA-2 RR:CR:GC 966869ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 2005

Mr. Shachar Gat
Shonfeld's USA, Inc.
16871 Noyes Avenue
Irvine, CA 92606

RE: Classification of Olives; Modification of NY J86643

Dear Mr. Gat:

On October 3, 2003, the Director, of the Customs and Border Protection National Commodity Specialist Division, in New York, issued New York Ruling (NY) J86643 to you in response to your request for the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of Item No. SA-204692, a "Two Part Martini Set" comprised of a glass jar of pearl onions and a glass jar of stuffed green olives, with four small metal forks with olive-shaped handles tied to the upper jar.

NY J86643 classified the pearl onions in subheading 2001.90.3400, HTSUS, which provides for vegetables, fruit, nuts and other edible parts of plants, prepared or preserved by vinegar or acetic acid other other vegetables onions. The olive forks were classified in subheading 8215.99.2000, HTSUS, which provides for forks other forks with rubber or plastic handles. NY J86643 classified the olives as follows: "The applicable subheading for the olives, when the total aggregate quantity imported into the United States in any calendar year is 2700 metric tons or less, will be 2005.70.1600, HTS, which provides for other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozenolivesin saline solutiongreen in colorpitted or stuffedplace packedstuffed, in containers each holding not more than 1 kg, drained weightin an aggregate quantity not to exceed 2700 metric tons in any calendar year. The rate of duty will be 5.4 cents per kilogram on drained weight. When the total quantity imported into the United States in any calendar year exceeds 2700 metric tons, the applicable subheading will be 2005.70.1800, HTS, and the rate of duty will be 6.9 cents per kilogram on drained weight."

Since NY J86643 was issued, Customs has reviewed the ruling and determined that the classification provided for the olives cannot be supported by the information available about the product at the time the ruling was issued and therefore that portion of the ruling must be modified.

FACTS:

Customs laboratory analysis of the olives (report NY20031210) reports that it detected 0.28 percent acetic acid in the mixture. The ingredient breakdown you provided with the classification request did not describe the composition of the solution the olives were packed in, describing it only as "solution C."

ISSUE:

What is the classification of the olives in product no. SA-204692, Two Part Martini Set?

LAW AND ANALYSIS:

Under the Harmonized Tariff Schedule of the United States, prepared or preserved olives are provided for in two categories – either "in a saline solution" or "otherwise prepared or preserved." Customs has traditionally construed the term "saline solution" to mean a solution composed essentially of salt and water. The addition of other ingredients to a solution that impact on the preparation of the olives (such as herbs, spices, oil, vinegar, etc.) precludes classification in the subheading for olives in a saline solution.

The fact that the laboratory detected acetic acid in the olive mixture could mean that the mixture is more complex than a simple saline solution. If this is the case, the classification provided in NY J86643 is incorrect. However, the acetic acid could also be a residue from prepared pimentos which have been stuffed into the olives. If this is the scenario, the classification provided is correct.

Because Customs does not have the necessary information with which to make an informed decision, the classification of the olives contained in NY J86643 must be modified. Should you wish Customs to provide a classification of the olives, you should submit a new request with a full description of the ingredients of "solution C" and information about how the olives are processed.

HOLDING:

NY J86443, dated October 3, 2003, is modified with respect to the classification provided for olives. The classification of the remaining products in that ruling (forks and onions) is not affected by this action.

Because this modification ruling is being issued within 60 days of the date of issuance of NY J86643, the notice and comment provisions of 19 U.S.C. 1625(c) do not apply.

EFFECT ON OTHER RULINGS:

NY J86643, dated October 3, 2003, is modified in accordance with this decision.

Sincerely,

Myles B. Harmon, Director

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