HQ 953235
April 26,1993
CLA-2 CO:R:C:F 953235 JGH
Patrick T. O'Brien, Esq.
Baker & McKenzie
Suite 1600 Barnett Tower
701 Brickell Avenue
Miami, Florida 33131
RE: Classification of canned tomatoes from Italy. -
Reconsideration of NYRL 878307
Dear Mr. O'Brien:
Your request for the reclassification of certain canned
tomatoes from Italy has been referred to this office for review.
FACTS:
It is claimed that "vine-ripened tomatoes will be picked,
boiled and packed, either whole or sliced, in "tin" cans." After
being picked, they are rinsed, in water, peeled, canned (in 5-lb
cans or larger) and boiled in water. The entire process is said
to take about six hours.
The sample submitted to Customs was said to consist of
peeled, whole, canned, boiled tomatoes in a liquid tomato
concentrate.
In NYRL 878307, dated October 13, 1992, it was ruled that
the canned tomatoes were classified as tomatoes prepared or
preserved otherwise than by vinegar or acetic acid, tomatoes,
whole or in pieces, other: in air tight containers, in subheading
2002.10.0050, HTSUS. As a product of the European Community (EC)
(Italy), articles classifiable in this subheading are subject to
a 100 percent rate of duty following subheading 9903.23.17, HTS.
ISSUE:
Classification of tomatoes prepared in the manner described
under the HTSUS. - 2 -
LAW & ANALYSIS:
It is argued that the tomatoes canned in the manner
described are not prepared or preserved within the meaning of
heading 2002, but remain fresh as described in heading 0702,
HTSUS. It is claimed that the Explanatory Notes permit
vegetables to be classified in heading 0702 even though they are
in air-tight containers, and include vegetables "whether fresh,
chilled, frozen (uncooked or cooked by steaming or boiling in
water)."
The Explanatory Notes to Chapter 7, HTSUS, state that the
Chapter covers vegetables, whether fresh, chilled, frozen
(uncooked or cooked by steaming or boiling in water),
provisionally preserved or dried (including dehydrated,
evaporated or freeze-dried), some of which have been dried and
powdered. The type of vegetable packed in air-tight containers
classified in Chapter 7 is described as a powder, a form of
preparation permitted in the Chapter; however, the same note
emphasizes that in most cases, products put up in such packings
are prepared or preserved as provided for in the headings of
Chapter 20. There is no indication that vegetables canned as the
tomatoes are in this case are classified in Chapter 7.
If not otherwise defined in the tariff or indicated by
legislative history, the correct meaning of a term in a tariff
provision is the common meaning understood in trade or commerce.
Steaming and boiling are recognized as usual processing in
freezing foods. Interocean Chemical & Minerals Corp., v. United
States, 13 CIT 449 (1989). Thus, the description "cooked by
steaming or boiling in water" refers only to the freezing of
vegetables, and has no application to the term "fresh", which is
intended to be interpreted in the tariff in its usual meaning.
In fact, Additional U.S. Note 1, Section IV, HTSUS, (which
includes Chapters 16 through 24, covering prepared and processed
foods, beverages and tobacco), states that the term "canned" as
used in the Section means preserved in airtight containers by
heat processing to destroy or inactivate micro-organisms and
enzymes that otherwise could cause spoilage. The processing
described includes that undergone by the tomatoes in this case,
and goes beyond that permitted in Chapter 7.
Customs considers the definitions of food processing found
in the regulations of the Food & Drug Administration (FDA), as
well as the Department of Agriculture, and it is interesting to
note that in describing fresh tomatoes in 7 CFR 51.19, no mention
is made of the processing such as is undergone here; however, in
21 CFR 190, the description of canned tomatoes is very similar:
"...sealed in a container and before or after sealing is so
processed by heat as to prevent spoilage." Thus, there is no - 3 -
basis either under the tariff definition or industry standards
for considering these canned tomatoes of a type of preparation
classifiable in Chapter 7.
Peeling the tomatoes in and of itself does not preclude
classification in Chapter 7, nor does the presence of "their own
juices."
HOLDING:
Tomatoes canned in the manner described are classifiable in
subheading 2002.10.0050, HTSUS, and as a product of Italy subject
to a duty rate of 100 percent under subeading 9903.23.17, HTSUS.
NYRL 878307 is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division