Fruit and Herbs Preserved in Acetic Acid; Modification of NY J87437

HQ 967015 January 25, 2005 CLA-2 RR:CR:GC 967015ptl Category: Classification TARIFF NO.: 2001.90.60 Mr. Shachar Gat Shonfeld's USA, Inc. 16871 Noyes Avenue Irvine, CA 92606 RE: Fruit and Herbs Preserved in Acetic Acid; Modification of NY J87437 Dear Mr. Gat: On October 27, 2003, the National Commodity Specialist Division of Customs and Border Protection (CBP) in New York, issued ruling J87437 which contained the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of two articles. The articles were identified using your product item number. According to NY J87437, Item # OV-204296A contained strawberries and rosemary in canola oil and was classified in subheading 2103.90.8000, HTSUS, which provides for mixed condiments and mixed seasonings … other. The other article, Item # OV-204296B contains cranberries, rosemary, and apricots in a 4.96 percent acetic acid liquid. That article was classified in subheading 2001.90.3800, HTSUS, which provides for vegetables, fruit, nuts and other edible parts of plants, prepared or preserved by vinegar or acetic acid … other … vegetables … other. Since NY J87437 was issued, CBP has reviewed the classification of Item # OV-204296B and determined that it is incorrect for the reasons stated below. The classification of the other article classified in NY J87437, OV-204296A, is not affected by this letter. Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NY J87437 was published on December 15, 2004, in the Customs Bulletin, Volume 38, Number 51. No comments were received in response to that notice. FACTS: You have described Item # OV-204296B as being a 500 ml bottle containing cranberries, rosemary, and apricots in a 4.96 percent acetic acid liquid. CBP Laboratory Report NY20031265, dated September 26, 2003, reports that the article contains 4.96 percent acetic acid by weight. Cranberries and apricots are fruits. Rosemary is an herb. ISSUE: What is the classification of fruits and an herb prepared or preserved in a solution that is 4.96 percent acetic acid by weight? LAW AND ANALYSIS: Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, 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 may then be applied in order. The HTSUS subheadings under consideration are as follows: 2001 Vegetables, fruit, nuts and other edible parts of plants, prepared or preserved by vinegar or acetic acid: * * * 2001.90 Other: Other: Vegetables: * * * 2001.90.3800 Other 2001.90.6000 Other The CBP Laboratory analysis performed on the product indicates that it consists of ingredients that have been prepared or preserved by acetic acid. Therefore, the product is a good of heading 2001, HTSUS. The ingredients that have been prepared or preserved by the acetic acid are cranberries and apricots. These are fruits, products of chapter 8. The additional ingredient, rosemary, is an herb, an edible plant which would, if alone, be classified in chapter 12. Because none of the ingredients of the product are vegetables, the product itself cannot be classified in a subheading which provides for vegetables. Instead, the product is classified in the residual subheading 2001.90.60, HTSUS, which provides for other products. HOLDING: The article in NY J87437, identified as Item # OV-204296B containing cranberries, apricots and rosemary, in a 4.96 percent acid liquid is classified in subheading 2001.90.60, HTSUS, which provides for: Vegetables, fruit, nuts and other edible parts of plants, prepared or preserved by vinegar or acetic acid, other, other, other. EFFECT ON OTHER RULINGS: NY J87437, dated October 27, 2003, is modified in accordance with this decision. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin. Sincerely, Myles B. Harmon, Director Commercial Rulings Division