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HQ 956850




March 22, 1996

CLA-2 RR:TC:FC 956850 RC

CATEGORY: CLASSIFICATION

TARIFF NO.: 2001.90.3900

Herbert Lynch, Esq.
Sullivan & Lynch, P.C.
156 State Street
Boston, Massachusetts 02109

RE: Classification of Jalapeno Peppers Prepared by Salt and Acetic Acid

Dear Mr. Lynch:

This is in response to your letter dated July 26, 1994, concerning the classification of jalapeno peppers prepared by salt and acetic acid under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise is described as jalapeno peppers, which have been cut in half, cleaned of seeds, placed into a plastic-lined, 250-gallon box with a solution composed of water, 5 percent salt, and 1.4 percent acetic acid, chilled to 40 degrees Fahrenheit, and transported by refrigerator truck to customers in the United States. The peppers have not been prepared in any manner other than described (i.e., by soda solution, by lactic fermentation). The U.S. purchaser will process the vegetable in either of two ways. The peppers may be removed from the solution, dried, stuffed with meat, cheese, etc., and then frozen or refrigerated and sold at retail. Other customers will take the peppers, with the liquid solution, mix them with other ingredients, and thermally treat and pack the resulting, finished, food product in metal cans for wholesale or retail use.

ISSUE:

Whether jalapeno peppers shipped in a solution of 5 percent salt and 1.4 percent acetic acid are provisionally preserved, that is, unsuitable for consumption at the time of importation or are vegetables prepared or preserved by acetic acid, in heading 2001.

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 HRL 952738 (January 27, 1993).

It is our understanding that provisional preservation of unfermented jalapeno peppers cannot be achieved by a liquid solution of 5 percent salt and 1.4 percent acetic acid. Five percent salt is too little to ferment the peppers, and 1.4 percent acetic acid is too little to preserve them. Microbiological deterioration is prevented not by the solution, but by the reduction of temperature, i.e., refrigeration. We note that these jalapeno peppers would be edible as imported. This is evident because neither of the two stated processing methods for these peppers involves washing to remove either the salt or acetic acid before they are ultimately consumed. Refrigeration of the peppers preserves them as they are transported. These peppers, while cold, are nevertheless suitable for consumption upon importation. Therefore, the peppers do not fall into heading 0711, HTSUSA.

It appears that the jalapeno peppers are specifically prepared with these amounts of salt and acetic acid for the savory properties they impart to the peppers. Therefore, we find the jalapeno peppers 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."

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. This position is unchanged. See HRL's 085838 dated December 21, 1989 and 952738 dated January 27, 1993.

Our decision is based on the facts as stated in your submission. At this point, Customs has not performed laboratory analysis for the jalapeno peppers subject of this ruling. We understand there may be variances in the specific acetic acid content of a given shipment; a large variance may result in a different classification. In order to determine if shipments contain the proper acetic acid level for classification in 2001, HTSUSA, the Port Director may exercise discretion and have our laboratory test actual shipments of jalapeno peppers to determine the precise substantive content.

HOLDING:

The sliced and cleaned 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.

Sincerely,

John Durant, Director
Tariff Classification

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