CLA-2 RR:CR:GC 962417 EAB
Mr. Al Sherman
Jack R. Huls & Co.
P.O. Box 1599
Blaine, Washington 98230
Re: salsa imported; HQ 085838 revoked
Dear Mr. Sherman:
In response to your letter on behalf of Pioneer Portion Pak, Ltd., Customs issued to you HQ 085838 dated December 21, 1989, in which mild and hot salsas were classified under the Harmonized Tariff Schedule of the United States (HTSUS) in subheading 2005.90.9000, the provision for other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other, other.
Based upon the recent decision of the Court of Appeals for the Federal Circuit in the case of Orlando Food Corporation v. United States, as noted hereinafter, Customs determined that salsas are more properly classifiable in subheading 2103.90.9060, HTSUS, the residual provision for sauces. Therefore, HQ 085838 should be revoked. Pursuant to § 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by § 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), notice of the proposed revocation was published on January 20, 1999 in the Customs Bulletin.
FACTS:
The product is either a mild or hot salsa consisting of dried tomatoes, water, onions, tomato paste, green peppers, vinegar, carrots, starch, jalapeño peppers, salt, sugar, spices and sodium benzoate, appearing in a thick liquid as large quantities of chopped and sliced vegetables; the acetic acid content of the mild salsa was 0.45 %, whereas the acetic acid content of the hot salsa was 0.46 %. Sold at retail, the product is to be used as a sauce.
ISSUE:
Whether the merchandise is classifiable as vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other, or as other tomato sauce.
LAW AND ANALYSIS:
Merchandise imported into the U.S. 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 otherwise requires, 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.
The Explanatory Notes to the Harmonized Commodity Description and Coding System (Explanatory Notes or ENs), including the Subheading Explanatory Notes, although not dispositive or legally binding, provide a commentary on the scope of each heading and certain subheadings of the HTSUS, and are generally indicative of the proper interpretation of such headings and subheadings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
Heading 2001, HTSUS, describes in part preparations based on vegetables and/or fruit. Heading 2103, HTSUS, covers in part sauces. The terms of these headings are mutually exclusive.
EN 20.01 provides as follows:
The goods covered by this heading [2001] differ from sauces of heading 21.03 in that the latter are generally liquids, emulsions or suspensions containing practically no pieces of fruit, vegetables or other edible parts of plants.
Similarly, EN 21.03 provides as follows:
The heading [21.03] includes certain products based on vegetables or fruit, but these differ from the preserved products in chapter 20 (and more especially those under heading 20.01) in that they are mainly liquids, emulsions or suspensions containing very little solid matter, - see the Explanatory Note to heading 20.01 regarding these preparations.
Based upon the express terms of heading 2001 and 2103, HTSUS, and the scope of each as put forth in the corresponding ENs, Customs has classified as prepared or preserved vegetables preparations containing much solid matter in the form of pieces of fruit or vegetables, and classified homogenous blended preparations based on fruit or vegetables as sauces.
In Orlando Food Products v. United States, 140 F.3d 1437, 20 Int’l Trade Rep. (BNA) 1001 (Fed. Cir. 1998), the CAFC found that a canned tomato product consisting of approximately 60 % whole, peeled tomatoes and 40 % tomato puree, by weight, together with salt, citric acid and a basil leaf, used as a preparation for a sauce, was described by the terms of both heading 2002, HTSUS (tomatoes prepared or preserved otherwise than by vinegar or acetic acid), and heading 2103, HTSUS (sauces and preparations therefor). The court further found that heading 2103 more specifically describes the merchandise than does heading 2002, notwithstanding the clearly visible large pieces and quantities of tomato present, so that proper classification is in heading 2103, HTSUS.
The presence of large pieces and quantities of vegetable and fruit in the salsa at issue here makes the product classifiable in an appropriate heading of chapter 20, HTSUS. Used as a sauce, however, the product is more specifically described by the terms of heading 2103, HTSUS, and is classifiable thereunder.
HOLDING:
Salsa consisting of dried tomatoes, water, onions, tomato paste, green peppers, vinegar, carrots, starch, jalapeño peppers, salt, sugar, spices and sodium benzoate, appearing in a thick liquid as large quantities of chopped and sliced vegetables having an acetic acid content of either 0.45 % or 0.46 %, sold at retail to be used as a sauce, is classifiable in subheading 2103.20.40, HTSUS, the provision for other tomato sauces.
HQ 085838 is revoked. In accordance with 19 U.S.C. 1625(c)(1), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Marvin Amernick, for
John A. Durant, Director
Commercial Rulings Division