CLA-2 RR:TC:FC 957625K

Port Director
U.S. Customs Service
9400 Viscount
El Paso, Texas 79925

RE: Application For Further Review of Protest No. 2402-94-100039; Jalapeno Peppers and Other Vegetables Provisionally Preserved

Dear Port Director:

The following is our response to the referral by your office, dated February 8, 1995, of the request for further review of the above-referenced protest.

FACTS:

The consumption entries covering the imported merchandise from Mexico were liquidated on June 3, 1994, under the provision for other vegetables prepared or preserved by vinegar or acetic acid, in subheading 2001.90.3900, Harmonized Tariff Schedule of the Unites States (HTSUS) (1993), with duty at the general rate of 12 percent ad valorem. A timely protest under 19 U.S.C. 1514 was received on August 12, 1994. The protestant requested reliquidation of the entry under the provision for other vegetables provisionally preserved, in subheading 0711.90.6000, HTSUS (1993), with a special free rate of duty. A further submission was submitted dated September 19, 1995, with an additional laboratory report.

The merchandise consists of Jalapeno peppers, Pimento pepper hulls, and cauliflower buttons. A Customs laboratory report dated January 31, 1994, indicated that samples of peppers were immersed in a brine containing 1.18 to 1.20 percent of acetic acid and 10.5 percent of salt. In a second report dated April 5, 1994, it was indicated "that the product, which is in a prepared or preserved' condition, would in all probability be de-salted prior to being offered commercially for immediate human consumption." Technical information was submitted with the protest and in the further submission indicating that the vegetables were not treated prior to immersion in the brine, that fermentation could not take place in a solution with a 10.5 percent salt content, and that the vegetables, upon importation, would have to be de-salted (to a 2 to 5 percent range) and further processed for human consumption. A question arose during the protest procedure as to whether the cauliflower buttons were fermented while in the brine and an independent laboratory report stated that "tests performed indicate no detection of food fermenting organisms".

ISSUE:

The issue is whether the vegetables as described above have been provisionally preserved in a brine, and not suitable in that state for immediate consumption.

LAW AND ANALYSIS:

Heading 0711, HTSUS, covers 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. The term "provisionally preserved" is not defined. However, to qualify as provisionally preserved, the statutory heading requires that the vegetables must be in a preservative substance, and that they are unsuitable in that state for immediate consumption. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and General Rules of Interpretation of the HTSUS. The EN for heading 0711 indicate that the vegetables covered by the heading are treated solely to ensure their provisional preservation during transportation or storage provided they remain unsuitable for immediate consumption in that state and are mainly used as raw materials for manufacturing purposes. However, the EN excludes from the heading goods which, in addition to having been provisionally preserved in brine, have also been specially treated such as by soda solution and by lactic fermentation.

We are satisfied that with the technical information submitted that the vegetables meet the criteria for the term "provisionally preserved" because of the following reasons.

The vegetables are in a preservative solution (brine consisting of water and approximately 10.5 percent salt and 1.18 to 1.20 percent of acetic acid).

The vegetables are in a solution containing approximately 10.5 percent of salt and are unsuitable in that state for immediate consumption.

The vegetables have to be de-salted after importation to make the vegetables suitable for consumption.

The vegetables have not been specially treated by soda solution or by lactic fermentation prior to importation.

The vegetables have been treated solely to ensure their provisional preservation during transport or storage prior to use.

HOLDING:

Vegetables as described in the above criteria are provisionally preserved and classified under heading 0711, HTSUS. Hence, the vegetables as described above are classified in subheading 0711.90.6000, HTSUS (1993).

You are directed to allow the protest in full.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the Protestant no later than 60 days from the date of this decision and any reliquidations of entries in accordance with this decision must be accomplished prior thereto. Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification
Appeals Division