H317626

HQ H317626 November 1, 2024 OT:RR:CTF:FTM H317626 PJG CATEGORY: Classification TARIFF NO.: 2103.20.40; 2103.90.90 Ms. Catherine Weeks Casas International Brokerage, Inc. 6775 Customhouse Plaza, Suite J Otay Mesa, California 92073 RE: Revocation of HQ H259324, HQ H258812, NY 856914, and HQ 085838; Modification of NY N195658, NY D88850, NY 890395, and HQ 088976; Classification of sauces; Revocation by operation of law; Mondiv, Div. of Lassonde Specialties Inc. v. United States, 329 F. Supp. 3d 1331 (Ct. Int’l Trade 2018); Mild Jalapeno Red Salsa and Mild Jalapeno Green Salsa Dear Ms. Weeks: This is in reference to New York Ruling Letter (“NY”) NY 856914, dated October 24, 1990, issued to you concerning the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of two types of salsa, specifically, a Mild Jalapeno Red Salsa and a Mild Jalapeno Green Salsa. In NY 856914, U.S. Customs (the predecessor to U.S. Customs and Border Protection (“CBP”)) classified the Mild Jalapeno Red Salsa in heading 2005, HTSUS, which in the 1990 version of the HTSUS provided for “Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen” and classified the Mild Jalapeno Green Salsa in heading 2008, HTSUS, which provides for “Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included.” We have reviewed NY 856914 and find it to be in error. For the reasons set forth below, we revoke NY 856914 and Headquarters Ruling Letter (“HQ”) 085838, dated December 21, 1989, and modify NY N195658, dated January 4, 2012, NY D88850, dated May 12, 1999, NY 890395, dated October 15, 1993, and HQ 088976, dated January 6, 1992, which concern substantially similar merchandise. Furthermore, HQ H259324, dated September 3, 2015, and HQ H258812, dated September 3, 2015, are revoked by operation of law in light of the U.S. Court of International Trade’s (“CIT’s”) decision in Mondiv, Div. of Lassonde Specialties Inc. v. United States, 329 F. Supp. 3d 1331 (Ct. Int’l Trade 2018). Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on September 11, 2024, in Volume 58, Number 36, of the Customs Bulletin. No comments were received in response to this notice. FACTS: In NY 856914, the Mild Jalapeno Red Salsa and Mild Jalapeno Green Salsa were described as follows: [the] Mild Jalapeno Red Salsa is composed of red tomatoes, water, onions, jalapeno peppers, coriander, salt, citric acid and sodium benzoate. The product has a fairly loose but lumpy consistency, and contains many small pieces of tomato, tomato seeds, onions and peppers. Mild Jalapeno Green Salsa is made from tomatillos, water, jalapeno peppers, onions, coriander, salt, citric acid and sodium benzoate. This product has a very loose consistency and, like the red salsa, contains a large quantity of tomatillo pieces and seeds, peppers and onions. Both salsas are put up in glass jars containing 18 ounces, net weight. CBP classified the Mild Jalapeno Red Salsa in subheading 2005.90.95, HTSUS, which in the 1990 version of the HTSUS provided for “Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen: Other vegetables and mixtures of vegetables: Other” and classified the Mild Jalapeno Green Salsa in subheading 2008.99.90, HTSUS, which in the 1990 version of the HTSUS provided for “Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Other: Other: Other.” ISSUES: Whether the Mild Jalapeno Red Salsa is classified as a sauce in heading 2103, HTSUS, or in heading 2005, HTSUS, which provides for “Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006.” Whether the Mild Jalapeno Green Salsa is classified as a sauce in heading 2103, HTSUS, or in heading 2008, HTSUS, which provides for “Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included.” LAW AND ANALYSIS: Classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) is made in accordance with the General Rules of Interpretation (“GRI”). 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 GRI may then be applied. The 2024 HTSUS provisions under consideration are as follows: 2005 Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006: 2008 Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: 2103 Sauces and preparations therefore; mixed condiments and mixed seasonings; mustard flour and meal and prepared mustard: Note 3 to Chapter 20, HTSUS, provides as follows: Heading 2001, 2004 and 2005 cover, as the case may be, only those products of chapter 7 or of heading 1105 or 1106 (other than flour, meal and powder of the products of chapter 8), which have been prepared or preserved by processes other than those referred to in note 1(a). The Harmonized Commodity Description and Coding System Explanatory Notes (“EN”) constitute the “official interpretation of the Harmonized System” at the international level. See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). While neither legally binding nor dispositive, the ENs “provide a commentary on the scope of each heading” of the HTSUS and are “generally indicative of [the] proper interpretation” of these headings. See id. The EN to 21.03(A) provides as follows: (A) SAUCES AND PREPARATIONS THEREFOR; MIXED CONDIMENTS AND MIXED SEASONINGS 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. Sauces are normally added to a food as it cooks or as it is served. Sauces provide flavour, moisture, and a contrast in texture and colour. They may also serve as a medium in which food is contained, for example, the velouté sauce of creamed chicken. Seasoning liquids (soy sauce, hot pepper sauce, fish sauce) are used both as ingredients in cooking and at table as condiments. The heading also includes certain preparations, based on vegetables or fruit, which are mainly liquids, emulsions or suspensions, and sometimes contain visible pieces of vegetables or fruit. These preparations differ from prepared or preserved vegetables and fruit of Chapter 20 in that they are used as sauces, i.e., as an accompaniment to food or in the preparation of certain food dishes, but are not intended to be eaten by themselves. * * * 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 wi

Classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) is made in accordance with the General Rules of Interpretation (“GRI”). 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 GRI may then be applied.The 2024 HTSUS provisions under consideration are as follows:2005 Other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006: 2008 Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included:2103 Sauces and preparations therefore; mixed condiments and mixed seasonings; mustard flour and meal and prepared mustard: Note 3 to Chapter 20, HTSUS, provides as follows: Heading 2001, 2004 and 2005 cover, as the case may be, only those products of chapter 7 or of heading 1105 or 1106 (other than flour, meal and powder of the products of chapter 8), which have been prepared or preserved by processes other than those referred to in note 1(a).The Harmonized Commodity Description and Coding System Explanatory Notes(“EN”) constitute the “official interpretation of the Harmonized System” at the international level. See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). While neither legally binding nor dispositive, the ENs “provide a commentary on the scope of each heading” of the HTSUS and are “generally indicative of [the] proper interpretation” of these headings. See id.The EN to 21.03(A) provides as follows:(A)  SAUCES AND PREPARATIONS THEREFOR; MIXED CONDIMENTS AND MIXED SEASONINGS            This heading covers preparations, generally of a highly spiced character, used to flavour certain