HQ H029004
CLA-2: OT:RR:CTF:TCM H029004 MG
Ms. Sonia Medina
Flegenheimer International
227 W. Grand Avenue
El Segundo, CA 90245
RE: Reconsideration of NY N022686; Frozen grilled individually packaged vegetables from Italy
Dear Ms. Medina:
This is in response to your letter, dated April 23, 2008, in which you have requested reconsideration on behalf of your client, Stonegate Foods, Inc., of New York Ruling Letter (NY) N022686, dated March 25, 2008, as it pertains to the classification of frozen grilled vegetables from Italy. Based on your submission and the arguments set forth therein, CBP has reviewed the classification of these products.
FACTS:
In NY Ruling N022686, CBP considered the classification of three prepared and frozen vegetables, identified as Antipasto di Eggplants, Antipasto di Zucchini, and Antipasto di Peppers. Each vegetable was prepared in the same manner (i.e., washed, cut into large pieces, grilled, seasoned, frozen, and packed into one- or five-pound plastic bags, a single vegetable in each bag.
Each one of the three antipasto products in N022686 consists of 90 percent vegetable, 6.1 percent sunflower oil, 2.6 percent olive oil, and less than one percent each of salt, garlic, parsley, black pepper, oregano, and wine vinegar. Samples of each one of these individually packed products were sent to the CBP Laboratory for analysis to determine the vegetables’ acetic acid content, as they were said to contain wine vinegar. In this regard, all three laboratory reports, dated March 10, 2008, indicate that the samples consist of each individual vegetable (i.e., eggplant, zucchini and peppers) and that there is no acetic acid in any of the three samples submitted.
All three products in N022686 were classified under subheading 2004.90.85, HTSUS, the provision for other frozen vegetables, prepared or preserved otherwise than by vinegar or acetic acid. Your April 23, 2008 letter argues that the products should be classified in the specific eight-digit tariff number for antipasto, specifically, under subheading 2004.90.10, HTSUS.
ISSUE: What is the correct classification of frozen grilled vegetables from Italy?
LAW AND ANALYSIS: Merchandise imported into the United States is classified under the HTSUS. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined 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 2 through 6 may then be applied in order. GRI 6, HTSUS, requires that the GRI’s be applied at the subheading level on the understanding that only subheadings at the same level are comparable. The GRI’s apply in the same manner when comparing subheadings within a heading.
The HTSUS provisions under consideration are as follows:
2004
Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, frozen, other than products of heading 2006:
2004.90
Other vegetables and mixtures of vegetables:
2004.90.10
Antipasto
2004.90.85
Other
Note 1 (b) to Chapter 20, HTSUS, provides, in relevant part:
1. This chapter does not cover:
* * *
(b) Food preparations containing more than 20 percent by weight of sausage, meat, meat offal, blood, fish or crustaceans, molluscs or other aquatic invertebrates, or any combination thereof (chapter 16);
* * *
At GRI 1 there is no dispute that the instant merchandise is described by the terms of heading 2004, HTSUS, as other vegetables or mixtures of vegetables prepared or preserved otherwise than by vinegar or acetic acid, frozen, other than products of heading 2006. Because the competing provisions, 2004.90.10 and 2004.90.85, HTSUS, are eight-digit tariff items falling under the superior, six-digit subheading for “other” prepared or preserved frozen vegetables, the former, providing for a specific product by name, “antipasto,” would prevail over the latter provision for “other” vegetables. Therefore, we begin the analysis using GRI 6 and the issue for consideration is whether this product is classified in the provision for antipasto.
Antipasto is not defined in the HS section or chapter notes, in the HS Explanatory Notes, or in any Additional United States Notes. As an eight-digit tariff item, it is a subheading unique to the United States. A tariff term that is not defined in the HTSUS or in the EN's is construed in accordance with its common and commercial meaning. See, Nippon Kogaku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. See, C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).
Literally translated as “before the meal,” antipasto is a hot or cold appetizer or first course. It is generally composed of an assortment of foods, such as marinated or pickled vegetables, cured meats, cheese, and fish, and served to diners seated at the table, in contrast to hors d’oeuvres, which are more commonly served to standing guests.
We have no administrative rulings to serve as precedent for subheading 2004.90.10, HTSUS, the provision for antipasto. However, products labeled “antipasto” that were not frozen and were prepared in vinegar or acetic acid, were classified elsewhere. For instance, in NY A80397, and A80522, both dated May 20, 1996, products
identified as "Antipasto Capriccioso," “Antipasto Delizioso,” and “Antipasto Fantasia,” consisting of mixtures of vegetables, herbs, and spices, in a solution of oil and vinegar, containing less than 0.5 percent of acetic acid, were classified under subheading 2005.90.97, HTSUS, for other prepared or preserved mixtures of vegetables.
In NY H86784, dated February 11, 2002, a product described as “Antipasto,” with a similar composition, but containing over 0.5 percent acetic acid, was classified under subheading 2001.90.38, HTSUS, the provision for other vegetables prepared by vinegar or acetic acid. In NY I83247, dated October 15, 2002, a “Tuna/Thon SnacKit,” described as an antipasto composed of a mixture of vegetables and fish (14 percent), containing more than 0.5 percent of acetic acid, was also classified in subheading 2001.90.38, HTSUS. In NY E85054, dated September 23, 1999, “Pepper Nibble,” an antipasto consisting of a sweet pepper wrapped around a fish fillet (11 percent), was classified in either heading 2001 or 2005, HTSUS, depending on the acetic acid content.
Note (b) to Chapter 20 allows for up to 20 percent by weight of sausage, meat, meat offal, blood, fish or crustaceans, molluscs or other aquatic invertebrates, or any combination thereof. Given the common and commercial meaning of the term antipasto, meat, cheese or fish is included in the assortment of foods comprising an antipasto. Therefore, in their imported condition, the three products at issue here consisting of an individually packaged, frozen prepared vegetable cannot be described as “antipasto” under the terms of subheading 2004.90.10, HTSUS.
Accordingly, by application of GRIs 1 and 6, The Antipasto di Eggplants, Antipasto di Zucchini, and Antipasto di Peppers are classified under 2004.90.85, HTSUS, which provides for: “Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, frozen, other than products of heading 2006: Other vegetables and mixtures of vegetables: Other.” As no other arguments were submitted with your request for reconsideration, NY N022686 is affirmed.
HOLDING:
By application of GRIs 1 and 6, The Antipasto di Eggplants, Antipasto di Zucchini, and Antipasto di Peppers are classified under 2004.90.8580, HTSUS, which provides for: “Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, frozen, other than products of heading 2006: Other vegetables and mixtures of vegetables: Other.” The general, column one rate of duty is 11.2, ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web, at http://www.usitc.gov.tata/hts/.
EFFECTS ON OTHER RULINGS:
NY N022686, dated March 25, 2008, is affirmed.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch