OT:RR:CTF:FTM H299499 YAG
Ms. Elizabeth Gutmann
Savino Del Bene USA, Inc. 149-10 183rd Street Jamaica, NY 11413
RE: Ruling Request; Lupini Snacks from Italy
Dear Ms. Gutmann:
This is in response to your request, dated June 14, 2018, filed on behalf of BRAMI, Inc. (“BRAMI”), concerning the classification of the following snack items imported by BRAMI from Italy: BRAMI’s Sea Salt Lupini Snack and BRAMI’s Garlic & Herb Lupini Snack.
Your request was initially filed as a request for reconsideration of New York Ruling Letter (“NY”) N295856, dated April 27, 2018. We note that even though the present request for reconsideration pertains to the same products, BRAMI changed the formula of the products by decreasing the vinegar or acetic level, making the facts submitted in this request different from the facts considered and discussed by U.S. Customs and Border Protection (“CBP”) in NY N295856. Therefore, instead of reconsidering NY N295856, we are issuing a new ruling with respect to the classification of BRAMI’s lupini snack items.
You have asked that certain information submitted in connection with this request be treated as confidential. Your request for confidentiality is approved. The information contained within brackets and all attachments to your request, forwarded to our office, will not be released to the public and will be withheld from published versions of this ruling.
FACTS:
The products at issue consist of two lupini snack items: BRAMI’s Sea Salt Lupini Snack and BRAMI’s Garlic & Herb Lupini Snack. Both products are imported by BRAMI from Italy. BRAMI’s Sea Salt Lupini Snack contains lupini beans, water, sea salt, and vinegar. The ingredients in BRAMI’s Garlic & Herb Lupini Snack are lupini beans, water, sea salt, vinegar, garlic, rosemary, and lactic acid.
A narrative description of the manufacturing process, product specification sheets, ingredient breakdowns, a manufacturing flow chart, two third party laboratory reports, and two samples were submitted along with your request. According to the information submitted, BRAMI processes the beans by [***]. The beans are then soaked in a marinade comprised of naturally flavorful ingredients. The nutritional labels identify these ingredients as sea salt, vinegar, garlic, rosemary, and lactic acid. The ingredient breakdown chart and two third party laboratory reports indicate that BRAMI’s Garlic & Herb Lupini Snack vinegar level is [*]% and BRAMI’s Sea Salt Lupini Snack vinegar level is [*]%. The products are packed in pouches, sealed, [***], and imported for retail sale in the United States, with eight pouches per box.
ISSUE:
What is the classification of lupini snack items imported by BRAMI from Italy?
LAW AND ANALYSIS:
Classification decisions under the Harmonized Tariff Schedule of the United States (“HTSUS”) are 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. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
The HTSUS (2019) provisions under consideration in this case are as follows:
2001.90.30 Vegetables, fruit, nuts and other edible parts of plants, prepared or preserved by vinegar or acetic acid: Other: Other: Vegetables: Beans.
2005.51.40 Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006: Beans shelled: Other: Other.
In interpreting the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) may be utilized. The ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (August 23, 1989).
EN 20.01 states 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, olives, capers, sweet corn, artichoke hearts, palm hearts, yams, walnuts and mangoes.
EN 20.05 states as follows:
The term “vegetables” in this heading is limited to the products referred to in Note 3 to this Chapter. These products (other than vegetables prepared or preserved by vinegar or acetic acid of heading 20.01, frozen vegetables of heading 20.04 and vegetables preserved by sugar of heading 20.06) are classified in the heading when they have been prepared or preserved by processes not provided for in Chapter 7 or 11. Such products fall in the heading irrespective of the type of container in which they are put up (often in cans or other airtight containers). These products, whole, in pieces or crushed, may be preserved in water, in tomato sauce or with other ingredients ready for immediate consumption. They may also be homogenised or mixed together (salads).
Examples of preparations which fall in the heading are: (1) olives, rendered edible by special treatment with soda solution or prolonged maceration in brine. (Olives merely preserved provisionally in brine remain classified in heading 07.11 - see the Explanatory Note to that heading.); (2) sauerkraut, prepared by partial fermentation of shredded and salted cabbage; (3) sweet corn, on the cob or in grains, carrots, peas, etc., pre cooked or put up with butter or other sauce; and, (4) products in the form of thin rectangular tablets made from potato flour, salt and small quantities of sodium glutamate, and partly dextrinised by successive humidification and dessication. These products are intended for consumption as “chips” after deep frying for a few seconds.
In this case, the lupini snack items are specifically infused with flavors in a marinade comprised of naturally flavorful ingredients, including vinegar. If considered to be prepared or preserved by vinegar or acetic acid, the lupini snack items would be classifiable in heading 2001, HTSUS, and, if prepared or preserved by other than vinegar or acetic acid, they would be classifiable in heading 2005, HTSUS.
The HTSUS and the ENs do not define what constitutes “prepared or preserved by vinegar or acetic acid” (which is found in vinegar). However, CBP’s 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 (“HQ”) 069121, dated May 20, 1983 (I/A 247/80). In that decision, CBP 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. This position remains unchanged. See HQ 085838, dated December 21, 1989; HQ 952738, dated January 27, 1993; HQ 953518, dated June 24, 1993; HQ 956850, dated March 22, 1996; HQ 959313, dated February 20, 1997; HQ 959314, dated February 20, 1997; and, HQ 957041, dated November 11, 1998.
CBP did not perform the laboratory analysis of the samples submitted; however, according to the information provided by BRAMI, which includes two third party laboratory reports, product specification sheets, and ingredient breakdowns, the lupini snack items contain less than 0.5% vinegar or acetic acid. Therefore, the lupini snack items fall into subheading 2005.51.4040, HTSUS, as “Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006: Beans shelled: Other: Other.”
HOLDING:
The instant BRAMI’s Sea Salt Lupini Snack and BRAMI’s Garlic & Herb Lupini Snack are classified under heading 2005, HTSUS, specifically under subheading 2005.51.4040, HTSUS, as “Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006: Beans shelled: Other: Other.” The general rate of duty will be 2.1?/kg on entire contents of container. For the purposes of this ruling, we accept the representations made by BRAMI and the findings of the third party laboratories concerning the vinegar content present in the lupini snack items in question. However, the accuracy of these percentages may be subject to verification by CBP.
A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Tom P. Beris, Acting Chief
Food, Textiles, and Marking Branch