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HQ 964374

October 17, 2000

CLA-2 RR:CR:GC 964374 AM


TARIFF NO.: 2003.10.00

Eric D. Smithweiss
Grunfeld, Desiderio, Lebowitz & Silverman LLP 245 Park Avenue, 33rd Floor
New York, NY 10167-3397

RE: canned marinated mushrooms

Dear Mr. Smithweiss:

The following is our decision regarding your letter, dated June 21, 2000, addressed to the Director, National Commodity Specialist Division, on behalf of your client, Tak Yuen Corp., regarding the tariff classification of marinated mushrooms produced in China pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Your letter was forwarded to this office for reply because the tariff classification of a similar product is before Headquarters as the subject of a request for Internal Advice (IA 00/04, NY F82129, HQ 963835). In preparing this ruling, consideration was given to arguments you presented in our meeting on September 29, 2000.


The product at issue is marinated mushrooms imported in 68 oz. cans. The mushrooms (species agaricus bisporus) are washed, blanched in water containing acetic acid, citric acid and ascorbic acid (vitamin C), then canned with water, salt, sugar, vinegar, acetic acid, yeast extracts, MSG, citric acid, flavoring and spices. You claim that the imported product contains .17 per cent acetic acid by weight and a pH of 4.5. However, a sample was submitted and Customs laboratory (Lab. No. 2-2000-21143) found less than .1 per cent acetic acid content.


Whether canned whole mushrooms containing less than 0.5 % acetic acid by weight are classified in subheading 2001.90.39, HTSUS, as "Vegetables prepared or preserved by vinegar or acetic acid: Other: Other", or in subheading 2003.10.00, HTSUS, as "Mushrooms and truffles, prepared or preserved otherwise than by vinegar or acetic acid: Mushrooms."


Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs. In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The HTSUS subheadings under consideration are as follows:

Vegetables, fruit, nuts and other edible parts of plants, prepared or preserved by vinegar or acetic acid:

Other: [than Cucumbers including gherkins or Onions]

2001.90.39 Other [than Artichokes, Beans, Nopalitos, or Pimientos (Capsicum anuum)]

2003 Mushrooms and truffles, prepared or preserved otherwise than by vinegar or acetic acid:

2003.10.00 Mushrooms

The ENs to heading 2001, HTSUS, state in pertinent part:

This heading covers vegetables (see Note 3 to this Chapter), fruit, nuts and other edible parts of plants prepared or preserved by means of vinegar or acetic acid, whether or not containing salt, spices, mustard, sugar or other sweetening matter. These products may also contain oil or other additives. They may be in bulk (in casks, drums, etc.) or in jars, bottles, tins or airtight containers ready for retail sale. The heading includes certain preparations known as pickles, mustard pickles, etc.

The principal products preserved by the methods described in this heading are cucumbers, gherkins, onions, shallots, tomatoes, cauliflowers (sic), olives, capers, sweet corn, artichoke hearts, palm hearts, yams, walnuts and mangoes.

The ENs to heading 2003, HTSUS, state, in pertinent part:

This heading covers all mushrooms (including stems) and truffles except those prepared or preserved by vinegar or acetic acid (heading 20.01) and those presented in the states specified in Chapter 7. The products of this heading may be whole, in pieces (e.g., sliced) or homogenised.

Applying GRI 1, the product is more specifically described in the latter heading, which includes the word "mushrooms." If the mushrooms are "prepared or preserved otherwise than by vinegar or acetic acid", then the mushrooms at issue are classified in heading 2003, HTSUS. Here, the mushrooms are prepared and preserved by washing, blanching, canning and the addition of water, rice vinegar, acetic acid, sugar, yeast extracts, MSG, and natural flavoring. Hence, the mushrooms at issue are prima facie classifiable in heading 2003, HTSUS.

You put forth two arguments as to why the mushrooms should be classified in heading 2001, HTSUS, the provision for "vegetables . . ., prepared or preserved by vinegar or acetic acid": (1) that the mushrooms are prepared or preserved by vinegar and acetic acid, and (2) that the 0.5% standard for determining whether or not vegetables are "prepared or preserved by vinegar or acetic acid," originated under the Tariff Schedules of the United States (TSUS), the predecessor to the HTSUS, to define that which has been "pickled," and should not be applied to the language in the HTSUS which does not include the word "pickled."

The HTSUS, and the ENs do not define what constitutes "prepared or preserved by vinegar or acetic acid" (which is found in vinegar). However, under the former tariff, the TSUS, 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 % 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 the HTSUS. See also HRL Letters, 085838 dated December 21, 1989, 952738 dated January 27, 1993, 953518 dated June 24, 1993, 956850 dated March 22, 1996, 959313 dated February 20, 1997, 959314 dated February 20, 1997, 959361 dated April 17, 1997 and 957041 dated November 11, 1998.

You cite three court cases to support your argument that the mushrooms here are "prepared or preserved by vinegar or acetic acid." However, careful review of the cases leads us to conclude that none do so. In United States v. De Boer & Dik, 6 Ct. Cust. 30 (1915), and in Chong Kee Jan Co, Inc. v. United States, 53 Cust. Ct. 70 (1964), the court determined whether vegetables, imported after being cleansed, salted and packed ready to be eaten, were "prepared or preserved" by the addition of the salt, or "pickled or packed in salt." In both cases the court held that the vegetables were prepared or preserved by the salt where salt was the only ingredient added to the vegetable. A different issue presents itself in the instant case. You contend that blanching vegetables, and then adding many ingredients including acetic acid and vinegar, prepares or preserves the vegetables by the vinegar and acetic acid. Customs contends, on the other hand, that the acetic acid content is too low to be said to prepare or preserve the mushrooms.

In United States v. W. S. Makaroff et al., 16 Ct. Cust. 531 (1929), the court needed to determine whether fish roe that had been salted was "prepared or preserved by the addition of salt in any amount" under the applicable tariff provision. There was conflicting evidence as to whether the salt was added to harden and preserve the eggs or simply to cleanse them. The court determined that cleansing could have been accomplished by water alone. Instead, the salt, which was evident in the salty taste of the caviar, "prepared or preserved" the eggs. The tariff provision at issue here does not include the words "in any amount" with regards to the addition of vinegar or acetic acid. If Congress had meant that any addition of vinegar or acetic acid would serve to classify vegetables in heading 2001, Congress could have said so. Following the Makaroff, supra, decision, we believe the amount of the vinegar or acetic acid is relevant to the determination of whether the mushrooms have been prepared or preserved by the vinegar or acetic acid. In De Boer & Dik, supra, the court distinguished the case of United States v. Strohmeyer and Arpe Co., 167 F. 533, because in that case the vegetable was "immersed in a weak brine which was not capable of preventing decay for any appreciable length of time." Hence the vegetable there was not held to be "prepared or preserved." Here, a .10-.17% acetic acid content could not serve to preserve the mushrooms.

Citing U.S. Food and Drug Administration (FDA) requirements, you claim that preservation occurs when the pH of the product is 4.6 or lower. At the outset, we note that Customs need not consider other agency's regulations in defining tariff terms. Sabritas S.A. de C.V. v. United States, 998 F. Supp. 1123 (CIT 1998). Arguendo, the pH is relevant to the determination of whether an article is preserved, the pH level of the item here is not accounted for by the addition of the vinegar and acetic acid. pH is lowered by the addition of any acid. Both ascorbic acid and citric acid are added to the product in addition to the vinegar and acetic acid. Also, the addition of salt to a vegetable can cause lactic acid formation in the canned product. Still, the pH is only 4.5, barely low enough to ensure that the product is preserved under FDA requirements.

In fact, the producer does not rely on the addition of vinegar and acetic acid to preserve the mushrooms. Instead the mushrooms are blanched before the addition of vinegar and other ingredients. In Green Giant Co. v. United States, 61 CCPA 46, 495 F.2d 775, (1974), the court considered the question of whether the blanching of mushrooms was a step in the preparation of the vegetable. The purpose of blanching was to remove the bacteria and inactivate surface enzymes. The court concluded that the effects of blanching were irreversible and constituted a preservation step. Id. at 778. Hence, it is not the addition of the vinegar and acetic acid in the instant case that serves to preserve the mushrooms, rather, the blanching has already done so.

The common understanding of a food item "prepared by vinegar or acetic acid" is that the vinegar or acetic acid imparts some organoleptic properties, as did the salt in Makaroff, supra. Items prepared thus are those suitable for a relish tray or use as a condiment. The ENs continue to insist on this meaning in describing the usual items prepared in this way (cucumbers, gherkins, onions, shallots, tomatoes, cauliflowers, (sic) olives, capers, sweet corn, artichoke hearts, palm hearts, yams, walnuts and mangoes) and by naming the other ingredients typically used in preparation of relish tray items and condiments (salt, spices, mustard, sugar or other sweetening matter, oil or other additives). Here, the vinegar and acetic acid are merely ingredients used in the preparation of the mushrooms. The vinegar and acetic acid do not prepare the mushrooms for any particular purpose per se. Hence, the de minimus amount of acetic acid herein detected (.10-.17 %) can not be said to "prepare" the mushrooms "by vinegar or acetic acid" under heading 2001, HTSUS.

You next argue that the 0.5 % rule is inapplicable because it was developed under the TSUS to delineate vegetables that are "pickled" rather than those that are "prepared or preserved by vinegar or acetic acid." To support your position, you cite Midwest of Cannon Falls v. United States, 122 F.3d 1423 (Fed. Cir. 1997). In that case, the Court of Appeals held that the deletion of the word "tree" from the tariff term "Christmas tree ornaments" necessarily broadened the meaning of "Christmas ornaments" to include those which do not hang from trees. The analogy is inapplicable here. The word "pickled" in the TSUS did not apply to this product. Under the TSUS, mushrooms and truffles were classified in subpart D, separately from the vegetables of subpart C which may be "packed in salt, in brine, pickled, or otherwise prepared or preserved." Hence, under the TSUS, the question of the meaning of "pickled" did not arise. Rather, mushrooms were classified as either fresh, dried, or otherwise prepared or preserved. The mushrooms in this case would be classified under item 144.20.43, TSUS, the provision for "Mushrooms . . .: Otherwise prepared or preserved. . . In containers each holding more than 9 ounces: Whole."

The "Continuity of Import and Export Trade Statistics after Implementation of the Harmonized Commodity Description and Coding System," United States International Trade Commission Publication 2051, published January 1988, lists the conversion of item 144.20.43, TSUS, to subheading 2003.10.00, HTSUS, the subheading considered here. Even though Customs cautioned users "against relying on the cross-references in order to determine appropriate tariff classifications under the proposed HTSUS," Federal Register Vol. 53, No. 139 July 20, 1988, 27447, Customs has made an independent evaluation, as discussed above, that the product is, in fact, classified in subheading 2003.10.00, HTSUS. See IA 00/04 issued as HQ 963835 on this date.


The product is classified in subheading 2003.10.00, HTSUS, the provision for "Mushrooms and truffles, prepared or preserved otherwise than by vinegar or acetic acid: Mushrooms."


John Durant, Director
Commercial Rulings Division

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