CLA-2 CO:R:C:G 085803 NLP
Mr. Paul Rosenthal, Esq.
Mr. Michael Kershow, Esq.
Collier, Shannon & Scott
1055 Thomas Jefferson Street, N.W.
Washington, D.C. 20007
RE: Reconsideration of New York Ruling 838970
Dear Sirs:
This is in response to your letter of August 9, 1989,
requesting a reconsideration of New York Ruling Letter (NYRL)
838970, which addressed the classification of nine varieties of
guacamole and an avocado pulp product, imported from Mexico,
under the Harmonized Tariff Schedule of the United States
(HTSUS). In addition, your letter requested a HTSUS tariff
classification of an avocado sauce product.
FACTS:
The merchandise under consideration is nine varieties of
guacamole and one variety of avocado sauce. The guacamole is
composed primarily of avocados. The percentage of avocados in
the various guacamoles ranges from 63 to 91 percent. The other
ingredients in the guacamole include lime juice, peppers, onion,
garlic, sugar, flour, salt, sour cream, spices and water. The
avocado sauce is composed of avocados, water and other flavoring
ingredients. The avocados make up 26% of the weight of the
avocado sauce, while the water composes 59.77% of the weight of
the sauce.
On April 18, 1989, the New York Area Director of Customs
issued NYRL 838970 classifying nine varieties of guacamole and an
avocado pulp product. NYRL 838970 classified both the guacamole
products and the avocado pulp product in 2008.99.1000, which
provides for fruit...otherwise prepared or preserved...not
elsewhere specified or included...other... avocados. You
requested reconsideration of the HTSUS classification of the
guacamole products.
-2-
ISSUES:
1. Whether the guacamole is classifiable in subheading
2008.99.1000 as fruit...otherwise prepared or preserved...
not elsewhere specified or included...other...avocados, or in
subheading 2103.90.6000, which provides for sauces and
preparations therefor; mixed condiments and mixed
seasonings;...Other: Other.?
2. What is the classification of the avocado sauce under the
HTSUS?
LAW AND ANALYSIS:
ISSUE 1
Classification of goods under the HTSUS is governed by
the General Rules of Interpretation (GRI's), taken in order. GRI
1 provides that classification shall be determined according to
the terms of the headings and any relative section or chapter
notes. It is your belief that the guacamole should be classified
in heading 2103 as a sauce. It is the opinion of this office
that heading 2103 does not encompass the nine varieties of
guacamole at issue.
Heading 2103 provides for sauces and preparations therefor;
mixed condiments and mixed seasonings. The Explanatory Notes to
heading 21.03 state that:
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,
flavorings, 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 in that they are
mainly liquids, emulsions or suspensions containing
very little solid matter....
-3-
At first glance, guacamole appears to be similar to sauces.
For example, guacamole is used as a dip, it is used as a spread
on breads or crackers, and it is made from various ingredients.
However, there are certain differences between sauces and
guacamole that exclude guacamole from heading 2103. First, while
a sauce is used to add flavor to a food dish or as an
accompaniment, it is not a product eaten alone, either for its
own sake or to stimulate the appetite. Second, guacamole, while
homogenous, is of a substantially thicker and heavier consistency
than ketchup, mustard, mayonnaise, or any of the other products
described in heading 2103. Third, when used as a "dressing" on
sandwiches, guacamole is applied in a considerable quantity, in
no way comparable to mayonnaise, mustard or ketchup.
In short, guacamole is clearly a product consumed for its
own sake. It is not, therefore, a sauce, but a fruit preparation
with an independent commercial identity. Thus, the nine
varieties of guacamole, the subject of ruling 838970, are
properly classified in subheading 2008.99.1000.
ISSUE 2
The avocado sauce was not ruled on in NYRL 838970. This
product is identified and marketed as a "sauce". More
importantly, the avocado sauce contains a considerable amount of
water and a smaller quantity of avocado, as compared to the nine
varieties of guacamole. The amount of water is 59.77% and the
amount of avocado is 26%. The only question is whether the
avocado sauce is a finished food product, used directly as a
condiment for food, or as an ingredient used in the preparation
of a sauce. If it is a finished food product, the product would
be classified as a sauce in subheading 2103.90.6000, which
provides for sauces and preparations therefor; mixed condiments
and mixed seasonings...Other: Other. If it is an ingredient
used in the preparation of a sauce, it would be classified in
subheading 2106.90.6090, which provides for food preparations not
elsewhere specified or included: Other: Other: Other. In the
absence of a sample and information as to how the product is
marketed, we cannot provide a definite ruling on the avocado
sauce.
HOLDING:
The nine varieties of guacamole are classifiable in
subheading 2008.99.1000 which provides for fruit...otherwise
prepared or preserved...not elsewhere specified or
included...other...avocados. The rate of duty is 13.2 c /kg.
-4-
Pursuant to Section 502(a)(3) of the Trade Act of 1974 (19
U.S.C. Section 2652(a)(3)) and General Note 3(c)(ii)(A), HTSUS,
Mexico has been designated a beneficiary developing country for
the purposes of the Generalized System of Preferences (GSP),
provided for in Title V of the Trade Act of 1974, as amended (19
U.S.C. Section 2461, et seq.). Provided all applicable
requirements are met under the GSP program, the avocado sauce,
if classifiable in subheading 2103.90.6000 or subheading
2106.90.6090, may be entered free of duty.
NYRL 838970 is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division