HQ 089803
November 21,1991
CLA-2 CO:R:C:G 089803 JGH
Kathleen M. Murphy, Esq.
Katten, Muchin & Davis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60606-3693
RE: Tomatoes, prepared or preserved - "Il Duca", product of Spain
Dear Ms. Murphy:
This is in reference to your letter of June 24, 1991, and
subsequent submissions and meeting on behalf of Carnation
Company, in regard to the classification of a tomato product from
Spain.
FACTS:
The preparation of the product is said to involve the
washing, selecting, scalding and peeling of the tomatoes. At
this point some of the tomatoes are used to make a puree, which
involves a heating and evaporation processes; the pureed tomatoes
are heated until enough moisture is removed to achieve a puree
with a 14.5 Brix. The tomatoes which are not pureed are reduced
in size by cutting and then placed in the bottom of a can. The
can is then filled with puree, with salt and fresh basil added
for flavor. After the product is imported it is used as a basis
for a sauce. An examination by a Customs Laboratory of a sample
can was said to reveal a product "composed of approximately
equal amounts of tomato parts (up to 1/4 of a tomato) and tomato
puree. It had 10% solids and less than 0.6% salt. No spices or
other food elements were found."
A report from an independent laboratory was submitted, in
which it was concluded that the product does not consist
exclusively of tomatoes, whether whole or in pieces, but, in
addition, it was said to contain "roughly half tomato puree, as
well as small amount of seasoning."
A visual examination of a sample was said to disclose a
product composed of many large, irregularly shaped tomato pieces,
from 1 to 2 inches long, in a thick slurry with many seeds.
ISSUE:
Whether the tomato preparation is classified as a sauce or
preparation for a sauce in subheading 2103.90.60, HTSUS,
subheading 2106.90.60, HTSUS, other food preparations not
elsewhere specified or included, or subheading 2002.90.0050,
HTSUS, as other tomatoes prepared or preserved otherwise than by
vinegar or acetic acid.
Originally it was requested that NYRL 856190, which involved
a similar product, be reconsidered. However, it is now
understood that the request for reconsideration has been
withdrawn.
LAW AND ANALYSIS:
The Explanatory Notes to the HTSUS provide an interpretation
of the provisions of the HTSUS provisions on the international
level. It is asserted that the explanatory notes for heading
2103, which defines sauces, describes the tomato preparation in
issue. This opinion is claimed to be supported by the
administrative ruling on pear chutney (HQ 085922), a product of
pear chunks in a creamy sauce. However, the pear chutney ruled
on is a finished product containing, in addition to pear chunks,
sugar, ginger, raisins, vinegar and seasonings and flavor. The
product in issue is made but from a single vegetable-tomatoes;
it is not a sauce.
Nor is the product a food preparation of subheading 2106,
HTSUS, which covers preparations which are, for the most part,
used as ingredients, and consist of a mixture of food
ingredients, rather than a single vegetable preparation as is the
case here.
The import is made exclusively from tomatoes and is a form
of prepared or preserved tomatoes as described in the
explanatory notes to heading 2002, HTSUS. The tomatoes are
processed by being scalded, peeled, reduced in size and mixed in
a can with a tomato puree. The result is a relatively thick
product which is used as the basis for a sauce but is not a sauce
as imported. In view of the number and size of the tomato pieces
which the product contains, as well as the presence of seeds and
tomato tops, it is concluded that the product is classified as
tomatoes in pieces in heading 2002.10, HTSUS.
HOLDING:
"IL Duca" tomatoes prepared as described above are
classified under the provision for other tomatoes prepared or
preserved otherwise than by vinegar or acetic acid: Tomatoes,
whole or in pieces, in subheading 2002.10.00, HTSUS, and as a
product of the EC would be subject to the 100% rate of duty,
under subheading 9903.23.17, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division