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HQ 959314

February 20, 1997

CLA-2 RR:TC:FC 959314 RC


TARIFF NO.: 2005.90.8000

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

RE: Decision on Application for Further Review of Protest No. 2304-96-100004, filed
January 8, 1996, concerning the classification of whole and quartered artichokes in vinegar

Dear Port Director:

The following is our decision in response to the referral from your office on or about
May 22, 1996, of the request for further review of the above-referenced protest.


Three consumption entries covering canned whole and quartered artichoke hearts in vinegar were entered from April through June 1995 under subheading 2001.90.2500, HTSUSA, the provision for other vegetables prepared or preserved by vinegar or acetic acid, free of duty, under the North American Free Trade Agreement (NAFTA), as articles produced entirely in the territory of Mexico. Samples from entries 22801489794 and 22801459052 were analyzed by the Customs laboratory and found to contain less than 0.5 percent acetic acid (lab report no's 5-95-21081-004 and 5-95-21082-002). Based on these laboratory findings, the entries for the artichokes were liquidated on October 13 and November 3, 1995, under subheading 2005.90.8000, HTSUSA, the provision for other vegetables prepared or preserved otherwise than by vinegar or acetic acid, dutiable at the rate of 14 percent ad valorem, under the NAFTA, as articles of Mexican origin. A timely protest under 19 U.S.C. 1514 was filed on January 8, 1996, requesting reliquidation under subheading 2001.90.2500, HTSUSA.


Whether the evidence presented in the protest substantiates that the specific artichokes subject of the protest were prepared or preserved by vinegar or acetic acid.


Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's) taken in order.

GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the heading and legal notes do not otherwise require, the remaining GRI's are applied taken in order. The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRIs.

The HTSUSA and the EN's do not define what constitutes "prepared or preserved by vinegar or acetic acid." 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 HTSUSA. See, HRL's 085838 dated December 21, 1989, and 952738 dated January 27, 1993.

The Customs laboratory analyzed random samples of the actual artichokes subject of this protest and found that the artichokes contained less than 0.5 percent acetic acid. The protestant does not dispute the efficacy of classification in heading 2001 or 2005, HTSUS, using 0.5 percent acetic acid as the proper threshold amount. The protestant claims that the artichokes at issue contain more than 0.5 percent acetic acid and submitted a laboratory report, paid for by the protestant, to support its claim.

Courts have long held that articles are classifiable based on their condition at the time of importation. See, United States v. Citroen, 223 U.S. 407 (1911) and cases cited therein; The Carrington Co. v. United States, 61 CCPA 77, C.A.D. 1126 (1974). Additionally, it is well settled that the methods of weighing, measuring, and testing merchandise used by Customs officers and the results obtained are presumed to be correct. United States v. Gage Bros., 1 Ct. Cust. Appls. 439, T.D. 31503; United States v. Lozano, Son & Co., 6 Ct. Cust. Appls. 281, T.D. 35506; Draper & Co., Inc. v. United States, 28 Cust. Ct. 136, C.D. 1400. This presumption may be rebutted by showing that such methods or results are erroneous. Sears, Roebuck & Co. v. United States, 3 Ct. Cust. Appls. 447, T.D. 33035; Gertzen & Co. v. United States, 12 Ct. Cust. Appls. 499, T.D. 40697; Pastene & Co., Inc. v. United States, 34 Cust. Ct. 52, C.D. 1677.

In order to rebut the presumption of correctness carried by the Customs laboratory analysis, the protestant must show the Customs laboratory analysis was erroneous. In Consolidated Cork Corp. v. United States, 54 Cust. Ct. 83, C.D. 2512 (1965), the court observed the following:

These cases indicate that the final determination in situations where the merchandise approaches the borderline set by the tariff act depends upon the accuracy of the methods used and their application by the chemists who performed the tests. One criterion is whether the test has been established by an appropriate Government agency or is recognized by commercial laboratories or by the trade. Another is whether the results obtained check with a standard or with each other.

In HRL 070173, dated December 27, 1982, Customs held that the presumption of correctness attached to a Customs laboratory analysis was not overcome by conflicting results from independent laboratory analyses, even when the same method of testing was utilized by both Customs and the independent laboratories.

No evidence was submitted by the protestant to rebut the presumption of correctness of the Customs laboratory report. That is, the protestant did not submit any evidence to show that the Customs laboratory used improper methodology to arrive at its results. Furthermore, the protestant's independent laboratory testing raises questions concerning the number of tests and, perhaps what is more important, the origin of the sample artichokes analyzed. The Customs laboratory analyzed samples of artichokes from the actual shipments at issue. While the protestant claims that the independent laboratory analyzed artichokes from the shipments at issue, the protestant has not produced any clear documentation to support this claim. Consequently, it is our opinion that your office correctly concluded that the products where not classifiable as other vegetables prepared or preserved by vinegar or acetic acid.


The subject artichokes are properly classifiable in subheading 2005.90.8000, HTSUSA, the provision for "Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen: Other vegetables and mixtures of vegetables: Artichokes," eligible for preferential treatment under the NAFTA, dutiable at the rate of 14 percent ad valorem.

You are instructed to deny the protest in full. A copy of this decision should be attached to the Form 19 to be returned to the protestant.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated
August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS, and to the public via the Diskette Subscription Service, the Freedom of Information Act, and other public access channels.


John Durant, Director
Tariff Classification

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