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HQ 964502




January 29, 2001

CLA-2 RR:CR:GC 964502 nel

CATEGORY: CLASSIFICATION

TARIFF NO.: 2103.20.4020

Jeff Zadow
Accounting Manager
Hormel Foods Corp.
1 Hormel Place
Austin, MN 55912-3680

RE: NY F85327: Salsa Casera and Salsa Ranchera

Dear Mr. Zadow:

This is in response to your letter of June 26, 2000, to the Director, National Commodity Specialist Division, concerning the classification of salsas imported from Mexico under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter was referred to this office for a reply. We regret the delay.

In preparing our response we have reconsidered the decision in NY F85327 issued to you on May 3, 2000.

FACTS:

The products in question are two salsas, each in 7 oz. (198 g) cans. They are described from the ingredients identified on their labels and from samples accompanying the request for reconsideration as follows:

Salsa Casera: tomatoes, onions, serrano peppers, salt, cilantro. Not described in NY F85327, the sample is composed of chopped vegetables (tomatoes, onions, peppers, and cilantro) in a red, watery liquid.

Salsa Ranchera: tomato puree, jalapeño peppers, vinegar, ancho peppers, onions, cascabel peppers, garlic, iodized salt, cottonseed oil, bay leaves and spices. Described in NY F85327 and in the sample, it is a thick sauce composed of tomato purée, jalapeño peppers, vinegar, ancho peppers, onions, cascabel peppers, garlic, salt, cottonseed oil, bay leaves and spices.

While samples were submitted, an ingredient breakdown by percentage was not provided for either salsa.

Customs classified both of these salsas as other tomato sauces under subheading 2103.20.4020, HTSUS, which provides for: Sauces and preparations therefor; mixed condiments and mixed seasonings; mustard flour and meal and prepared mustard: Tomato ketchup and other tomato sauces: Other; In containers holding less than 1.4 kg. You have requested a reconsideration of that classification, stating that the more appropriate subheading is 2103.90.9060, HTSUS, which provides for: Sauces and preparations therefor; mixed condiments and mixed seasonings; mustard flour and meal and prepared mustard: Other: Other: Other: Other.

ISSUE:

Whether Salsa Casera and Salsa Ranchera are properly classified as other tomato sauces under subheading 2103.20.40, HTSUS.

LAW & ANALYSIS:

The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTSUS. The majority of imported 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, then the remaining GRIs may be applied.

The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System constitute the official interpretation of the Harmonized System at the international level. Though not dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

The classification of Salsa Casera and Salsa Ranchera as sauces of heading 2103, HTSUS, which provides for sauces and preparations therefor, is not disputed.

EN 21.03 (A) states:

This heading covers preparations, generally of a highly spiced character, used to flavour certain dishes (meat, fish, salads, etc.), and made from various ingredients” (eggs, vegetables, meat, fruit, flours, starches, oil, vinegar, sugar, spices, mustard, flavourings, etc.). Sauces are generally in liquid form and preparations for sauces are usually in the form of powders to which only milk, water, etc. need to be added to obtain a sauce.

The heading 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 EN to heading 20.01 regarding these preparations.

Mixed condiments and mixed seasonings containing spices differ from the spices of headings 09.04 to 09.10 in that they also contain one or more flavouring or seasoning substances of Chapters other than Chapter 9, in such proportions that the mixture has no longer the essential character of a spice within the meaning of Chapter 9 (see the General EN to that Chapter).

Examples of products covered by the heading are: mayonnaise, salad dressings, Béarnaise, bolognaise (consisting of chopped meat, tomato purée, spices, etc.), soya sauces, mushroom sauce, Worcester sauce (generally made with a base of thick soya sauce, an infusion of spices in vinegar, with added salt, sugar, caramel and mustard), tomato ketchup (a preparation made from tomato purée, sugar, vinegar, salt and spices) and other tomato sauces, celery salt (a mixture of cooking salt and finely ground celery seeds), certain mixed seasonings for sausage making, and products of Chapter 22 (other than those of heading 22.09) prepared for culinary purposes and thereby rendered unsuitable for consumption as beverages (e.g., cooking wines and cooking Cognac).

This note describes Salsa Casera and Salsa Ranchera. The presence of large pieces and quantities of vegetable and fruit in the salsas suggests classification in an appropriate heading of Chapter 20, HTSUS. Used as a sauce, however, these products are more specifically described by the terms of heading 2103, HTSUS. See HQs 962417 and 962418 dated March 3, 1999, citing Orlando Food Products v. United States, 140 F.3d 1437 (Fed. Cir. 1998).

Subheading 2103.20, HTSUS, provides for: Tomato ketchup and other tomato sauces. We have held that the provision “other tomato sauces” need not be composed of tomato puree and are not limited to pizza or pasta sauces. See HQ 962417, in which a 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 sold at retail as a sauce,” was classified in subheading 2103.20.40, HTSUS, the provision for other tomato sauces. The only demands placed on goods of this subheading are principle use as a sauce and identification as a tomato sauce. This subheading includes all sauces based on tomatoes, including salsas.

You assert that these salsas are not “other tomato sauces” as they are “not made of tomato puree such as sauces that are made and marketed for pizza or pasta. The salsas are made of fresh ingredients, which are chopped, not pureed.” This assertion is at variance with the label for Salsa Ranchera, which lists tomato puree as one of its principle ingredients. On both salsa product labels “tomatoes” or “tomato puree” are listed as the first ingredient, by weight. The dominance of tomatoes in these salsas is clear from an examination of the samples.

You further assert that these salsas are “marketed as condiments, not sauces, to be used on meats, seafood, vegetables, or tortilla chips.” Indeed, the “word ‘sauce,’ as commonly used, designates a condiment, generally but not always of liquid form, eaten as an addition to and together with a dish of food, to give it flavor and make it more palatable.” Bogle v. Magone, 152 U.S. 623, 625 (1894). Since sauces may be presented in a variety of forms and still be used as a condiment, this does not persuade us that these salsas are not sauces with a tomato base.

Customs has previously classified a salsa product consisting of “dried tomatoes, water, onions, tomato paste, green peppers, vinegar, carrots, starch, jalapeño peppers, salt, sugar and sodium benzoate, appearing in a thick liquid as large quantities of chopped and sliced vegetables sold at retail as a sauce,” in subheading 2103.20.40, HTSUS, the provision for other tomato sauces. See HQ 962417 dated March 3, 1999. Similarly, Salsa Casera and Salsa Ranchera are properly classified in subheading 2103.20.40, HTSUS, the provision for other tomato sauces.

HOLDING:

NY F85327 is correct in classifying both Salsa Casera and Salsa Ranchera under subheading 2103.20.4020, HTSUS, which provides for: Sauces and preparations therefor; mixed condiments and mixed seasonings; mustard flour and meal and prepared mustard: Tomato ketchup and other tomato sauces: Other; In containers holding less than 1.4 kg.

Sincerely,

John Durant, Director

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