CLA-2 CO:R:C:F 088976 RFC
Mr. Peter W. Klestadt
Grunfeld, Desiderio, Lebowitz & Silverman
12 East 49th Street
New York, NY 10017
RE: Tomato-related products
Dear Mr. Klestadt:
This letter is in response to your request of March 28,
1991, on behalf of Rienzi & Sons, Inc., concerning the tariff
classification under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA) of certain tomato-related products.
FACTS:
There are three products for which classification rulings
are sought. They are identified as follows: Alla Napoletana,
Campagnola, and Salsa Sorrentina.
Alla Napoletana
A laboratory analysis of a sample of Alla Napoletana
reveals the product to be of uniform texture and containing salt,
oil, and a 12.5 percent dry solids content. No acetic acid was
found. A visual examination of a sample of Alla Napoletana
reveals the product to consist of a tomato concentrate with a
thick consistency and containing light amounts of very small
pieces of chopped green peppers, olives, and tomato.
Campagnola
A laboratory analysis of a sample of Campagnola reveals the
product to be of a heterogeneous texture and containing vegetable
parts, spices, salt, oil, and a 11.6 percent dry solids content.
No acetic acid was found. A visual examination of a sample of
Campagnola reveals the product to consist of a fairly loose
tomato concentrate in which are found a considerable number of
mushroom pieces, thin onion slices, and tomato pieces. The
mushroom pieces range in size from 3/4 inch to 1 and 1/4 inches
in length.
Salsa Sorrentina
A laboratory analysis of a sample of Salsa Sorrentina
reveals the product to be of a heterogeneous texture and
containing parts of various vegetables, spices, oil, and a 11.7
percent dry solids content. No acetic acid was found. A visual
examination of a sample of Salsa Sorrentina reveals the product
to consist of a tomato concentrate containing many pieces of
sliced eggplant, chopped olives, and broken-tomato pieces. The
eggplant pieces were in the form of strips ranging in size from 1
and 1/4 to 4 inches in length.
ISSUES:
(1) What is the proper tariff classification of a tomato
concentrate containing several large vegetable pieces?
(2) What is the proper tariff classification of a tomato
concentrate containing a few very small vegetable pieces?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified
under the HTSUSA. The tariff classification of merchandise under
the HTSUSA is governed by the principles set forth in the General
Rules of Interpretation (GRIs) and, in the absence of special
language or context which otherwise requires, by the Additional
U.S. Rules of Interpretation. The GRIs and the Additional U.S.
Rules of Interpretation are part of the HTSUSA and are to be
considered statutory provisions of law for all purposes. See
Sections 1204(a) and 1204(c) of the Omnibus Trade and
Competitiveness Act of 1988 (19 U.S.C. 1204(a) and 1204(c)).
GRI 1 requires that classification be determined first
according to the terms of the headings of the tariff schedule
(i.e., (1) merchandise is to be classified under the 4-digit
heading that most specifically describes the merchandise; (2)
only 4-digit headings are comparable; and (3) merchandise must
first satisfy the provisions of a 4-digit heading before
consideration is given to classification under a subheading
within this 4-digit heading) and any relative section or chapter
notes and, provided such headings or notes do not otherwise
require, then according to the other GRIs.
GRI 6 prescribes that, for legal purposes, GRIs 1 to 5 shall
govern, mutatis mutandis, classification at subheading levels
within the same heading. Therefore, merchandise is to be
classified at equal subheading levels (i.e., at the same digit
level) within the same 4-digit heading under the subheading that
most specifically describes or identifies the merchandise.
The Explanatory Notes to the Harmonized Commodity
Description and Coding System (hereinafter "Harmonized System")
represent the official interpretation of the Customs Cooperation
Council on the scope of each heading. See H.R. Conf. Rep. No.
100-576, 100th Cong., 2d Sess. 549 (1988); 23 Customs Bulletin
No. 36, 3 (T.D. 89-90, September 6, 1989), 59 F.R. 35127 (August
23, 1989). Although not binding on the contracting parties to
the Harmonized System Convention or considered to be dispositive
in the interpretation of the Harmonized System, the Explanatory
Notes should be consulted on the proper scope of the Harmonized
System. Id.
In view of the composition of each of the above-described
products, the competing headings in the instant classification
analysis are 2005 and 2103. Heading 2103 provides for, among
other things, sauces. Guidance concerning what does and does not
constitute a "sauce" for purposes of classification under
heading 2103 can be found in the Explanatory Notes to that
heading. Those notes state, in part, that:
Sauces are generally in liquid form...[Heading
2103]...includes certain products based on
vegetables...but these differ from the preserved
products in Chapter 20 (and more especially those under
heading 20.01) in that they are mainly liquids,
emulsions or suspensions containing very little solid
matter, - see the Explanatory Note to heading 20.01
regarding these preparations (underscoring added).
See Explanatory Notes to Heading 21.03 to the Harmonized
Commodity Description and Coding System.
Turning to the Explanatory Notes to heading 2001, one finds the
following comment on "sauces":
[S]auces of heading 21.03...are generally liquids,
emulsions or suspensions containing practically no
pieces of fruit, vegetables or other edible parts of
plants (underscoring added).
See Explanatory Notes to Heading 20.01 to the Harmonized
Commodity Description and Coding System.
One can only conclude from the above-cited Explanatory Notes that
for a product to be classified in heading 2103 as a sauce, it
must contain little or no pieces of vegetable; and those pieces
that it might contain must be very small in size.
The second heading under consideration in the instant
classification analysis is 2005. That heading provides for
"other vegetables prepared or preserved otherwise than by vinegar
or acetic acid, not frozen." Guidance concerning the coverage of
that heading can be found in the Explanatory Notes thereto.
Those notes state, in part, that:
The term "vegetables" in this heading is limited to the
products referred to in Note 3 to this Chapter. These
products (other than vegetables prepared or preserved
by vinegar or acetic acid of heading 20.01 and frozen
vegetables of heading 20.04) are classified in the
heading when they have been prepared by processes not
provided for in Chapter 7 or 11.
Such products fall in the heading irrespective of the
type of container in which they are put up (often in
cans or other airtight containers).
These products, whole, in pieces or crushed, may be
preserved in water, in tomato sauce or with other
ingredients ready for immediate consumption. They may
also be homogenised or mixed together (salads)
(underscoring added).
See Explanatory Notes to Heading 20.05 to the Harmonized
Commodity Description and Coding System.
In view of the above-cited Explanatory Notes and of the above-
cited Explanatory Notes to headings 2301 and 2001, one can only
conclude that a product consisting of a tomato concentrate with
several large vegetable pieces and not prepared or preserved
otherwise than by vinegar or acetic acid and not frozen is
properly classified in heading 2005.
Alla Napoletana
As Alla Napoletana is a tomato concentrate containing a few
very small vegetable pieces, it is properly classified in heading
2103 as a "sauce."
Campagnola
As Campagnola is a tomato concentrate containing several
large vegetable pieces and contains no vinegar or acetic acid and
is not frozen, it is properly classified in heading 2005 as
"other vegetables prepared or preserved otherwise than by vinegar
or acetic acid, not frozen."
Salsa Sorrentina
As Salsa Sorrentina is a tomato concentrate containing
several large vegetable pieces and contains no vinegar or acetic
acid and is not frozen, it is properly classified in heading 2005
as "other vegetables prepared or preserved otherwise than by
vinegar or acetic acid, not frozen."
HOLDING:
Alla Napoletana
The product identified above as "Alla Napoletana" is
properly classified as follows: If imported in containers holding
less than 1.4 kg., then it is classified under the statistical-
reporting number 2103.20.4020, HTSUSA, which provides for
sauces, tomato ketchup and other tomato sauces, other, in
containers holding less than 1.4 kg. On the other hand, if
imported in containers holding more than 1.4 kg, then it is
classified under the statistical-reporting number 2103.20.4040,
HTSUSA, which provides for sauces, tomato ketchup and other
tomato sauces, other, other. The general rate of duty for both
of those statistical-reporting numbers is 13.6 percent ad
valorem.
Campagnola
The product identified above as "Campagnola" is properly
classified under the statistical-reporting number 2005.90.9500,
HTSUSA, which provides for other vegetables prepared or preserved
otherwise than by vinegar or acetic acid, not frozen, other
vegetables and mixtures of vegetables, other. The general rate
of duty is 17.5 percent ad valorem.
Salsa Sorrentina
The product identified above as "Salsa Sorrentina" is
properly classified under the statistical-reporting number
2005.90.9500, HTSUSA, which provides for other vegetables
prepared or preserved otherwise than by vinegar or acetic acid,
not frozen, other vegetables and mixtures of vegetables, other.
The general rate of duty is 17.5 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division