Salsa Sauce

HQ 085838 December 21, 1989 CLA-2 CO:R:C:G 085838 SLR CATEGORY: Classification TARIFF NO.: 2005.90.9000 Mr. Al Sherman Jack R. Huls & Co. 61 12th Street Blaine, WA 98230 RE: Salsa Sauce Dear Mr. Sherman: This ruling is in response to your inquiry, on behalf of Pioneer Portion Pak, Ltd., Richmond, B.C., Canada, requesting the proper classification of salsa sauce under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Samples produced in Canada were provided for our examination. FACTS: The two submitted samples (a "mild" and "hot" salsa) contain the following ingredients: dried tomatoes, water, onions, tomato paste, green peppers, vinegar, carrots, starch, jalapeno peppers, salt, sugar, spices, and sodium benzoate. The samples were forwarded and later analyzed by the U.S. Customs laboratory. Both were found to be of a thick consistency, containing very large quantities of chopped and sliced vegetables. The acetic acid content of the "mild" salsa registered 0.45 percent. The same test performed on the "hot" salsa revealed 0.46 percent. In your letter, you maintain that the subject salsa should be classified as an "other tomato sauce" in subheading 2103.20.40, HTSUSA. ISSUE: Is the salsa classifiable as an "other tomato sauce" under subheading 2103.20.40, HTSUSA, as requested, and, if not, what classification is appropriate? LAW AND ANALYSIS: In the HTSUSA, sauces fall in heading 2103. It appears, however, that this heading does not encompass the products in issue. The Explanatory Notes to heading 2103 indicate that: -2- The heading includes certain products based on vegetables or fruit, but these differ from the preserved products of Chapter 20 (and more especially those under heading 20.01) in that they are mainly liquids, emulsions or suspensions containing very little solid matter.... Although not legally binding, the Explanatory Notes do represent the official interpretation of the tariff at the international level. Here, the two styles of salsa contain very large quantities of chopped and sliced vegetables suspended in a thick, red slurry. Their composition in no way resembles the smooth texture of mustard or mayonnaise. Consequently, these products are not classifiable in heading 2103. Heading 2001 provides for "vegetables ... and other edible parts of plants, prepared or preserved by vinegar or acetic acid." This heading appears to describe the products in issue. Customs, however, limits those products deemed "prepared" by acetic acid to those with an acetic acid content of 0.5 percent or above. Since the acetic acid content of both salsas falls below this standard, classification under heading 2001 is precluded. Heading 2005, HTSUSA, provides for "other vegetables prepared otherwise than by vinegar or acetic acid, not frozen." The Explanatory Notes to heading 2005 indicate that these products "whole, in pieces or crushed, may be preserved in water, in tomato sauce, with other ingredients ready for consumption...." This heading so describes the "mild" and "hot" salsa. HOLDING: The subject salsa is classifiable under 2005.90.9000, HTSUSA, which provides for other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other, other. The General rate of duty is 17.5 percent ad valorem. Articles classified in subheading 2005.90.9000, HTSUSA, which have originated in the territory of Canada, will be entitled to a reduced duty of 15.7 percent under the United States-Canada Free Trade Agreement upon compliance with all applicable regulations. Sincerely, John Durant, Director Commercial Rulings Division