OT:RR:CTF:FTM H316751 MD
Mr. S. Richard Shostak
6620 N. St. Andrews Drive
Tucson, Arizona 85718
RE: Affirmation of NY N316281; Tariff Classification of Tomato Products from Mexico
Dear Mr. Shostak:
This is in response to your request, dated February 5, 2021, for reconsideration of New York Ruling Letter (“NY”) N316281, issued to you on December 28, 2020. In that ruling, U.S. Customs and Border Protection (“CBP”) classified various tomato products from Mexico imported by your client, Western Repacking, LLP. CBP classified the tomato products from Mexico under heading 0702, Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for “Tomatoes, fresh or chilled,” with specific subheadings varying by product and import period. We have reviewed NY N316281 and determined it to be correct for the reasons set forth below.
NY N316281 described the tomato products and their processing as follows:
The merchandise is described in your letter as diced and sliced roma tomatoes, diced and sliced round tomatoes, diced/chopped grape tomatoes, and a pico de gallo mixture comprised of roma tomatoes or round tomatoes, onions, jalapenos, and green bell peppers. The products all contain a slight amount of water solution from the intensive washing process comprised of water and other chemicals intended to disinfect the product.
At the manufacturing facility, the products are prepared on extensive proprietary equipment by washing, slicing, or dicing the vegetables, removing the gelatin, seeds, and stems, adding certain chemicals, and packaging the final products for export to the United States and other countries.
CBP found that the various tomato products were classified in heading 0702, HTSUS, which provides for “Tomatoes, fresh or chilled.” The ten-digit subheadings under the HTSUS depends on what variety of tomato is imported combined with the date of entry of the tomatoes into the United States.
In your request for reconsideration, you claim that the various tomato products should be classified in Chapter 20, HTSUS, which provides for “Preparations of vegetables, fruit, nuts or other parts of plants.” Specifically, you suggest that the tomato products from Mexico should be classified under subheading 2002.10, HTSUS, which provides for “Tomatoes prepared or preserved otherwise than by vinegar or acetic acid: Tomatoes, whole or in pieces.” You claim that the tomato products at issue should be classified under subheading 2002.10, HTSUS, on the basis of the following information:
The facts set out in the ruling request, dated September 2, 2020, and in a supplemental letter, dated December 2, 2020;
The facts restated in NY N316281;
The definitions of the words “prepared” and “preserved;”
The scope and coverage of the HTSUS provisions applied by CBP and the claim made in the protest;
All controlling or relevant applicable court decisions; and
All controlling or relevant Customs rulings.
Upon review of all of the facts presented – from the ruling request, NY N316281, the supplemental letter, and the reconsideration request – we find that the tomato products at-issue were properly classified under heading 0702, HTSUS, as “Tomatoes, fresh and chilled.” While the tomato products undergo certain processing operations in Mexico, there is nothing to suggest that this processing goes beyond the scope of Chapter 7, HTSUS. Rather, the processing of the tomatoes is reflective of a Chapter 7, HTSUS, product.
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) for heading 0702, HTSUS, provide for “fresh or chilled tomatoes of all kinds.” The General EN to Chapter 7, HTSUS, states, in relevant part:
This Chapter covers vegetables… whether fresh, chilled, frozen [], provisionally preserved or dried [].
The term “chilled” means that the temperature of a product has been reduced, generally to around 0 degrees Celsius, without being frozen.
Unless the context otherwise requires, vegetables of this Chapter may be whole, sliced, chopped, shredded, pulped, grated, peeled or shelled.
In contrast, the ENs for Heading 2002, HTSUS, state, in relevant part:
This heading covers tomatoes, whether whole or in pieces, other than tomatoes prepared or preserved by vinegar or acetic acid (heading 20.01) and tomatoes presented in the states specified in Chapter 7.
The facts in your reconsideration request set out the following production process. At the production site, tomatoes are processed “by three vigorous washes in water treated with chemicals, which removes all dirt and foreign materials and disinfects the tomatoes and brings them into compliance with all U.S. [Federal Drug Administration (“FDA”)] and [third] [p]arty food safety requirements and standards.” According to your submission, after the washing process, the tomatoes undergo operations of cutting the ends off the tomatoes and removing their seeds, gelatin and stems, the processes, which as you state, extend the shelf life of these sliced and diced products. Throughout the above processing, the tomatoes “are refrigerated down to 35 degrees [Fahrenheit], which [] is maintained while they are transported to the United States.” Basically, the processing steps in Mexico involve washing, slicing, or dicing the vegetables, and removing the gelatin, seeds, and stems.
The manufacturing process of the tomato products begins with the washing of fresh tomatoes. The objective of this washing is to “remove[] all dirt and foreign materials” from the tomatoes and to “bring[] them into compliance with all U.S. FDA and [third] party food safety requirements and standards.” Such routine food safety precautions are not exclusionary for the purposes of classification within Chapter 7, HTSUS. As such, the mere washing of the tomatoes at-issue to comply with regulatory standards does not exclude the ultimate tomato products from classification in Chapter 7, HTSUS.
The second step of the enumerated processing involves “cutting the ends off the tomatoes and removing their seeds, gelatin and stems.” This processing is done to “extend the shelf life of these sliced and diced products.” While the removal of the non-edible parts of the tomatoes is a self-explanatory processing component, as the retention of these parts within the tomato products would require the consumer to remove the non-edible pieces themselves, such processing does not exclude the tomato products from the scope of Chapter 7, HTSUS. Nothing within the facts suggests that the tomato products contain added preservatives or are being further processed beyond the products classifiable in Chapter 7, HTSUS. The General EN to Chapter 7 specifically states that vegetables of this Chapter may be whole, sliced, chopped, shredded, pulped, grated, peeled or shelled. Therefore, the processing in this case is contemplated and provided for as a characteristic of Chapter 7, HTSUS, vegetables.
Throughout processing, the tomato products are “refrigerated down to 35 degrees [Fahrenheit], which temperature is maintained while they are transported to the United States and foreign customers.” The Chapter 7, HTSUS, ENs explicitly provide for products which are “chilled.” Such “chilled” products are those where “the temperature of the product has been reduced, generally to around 0 degrees Celsius, without being frozen.” Here, the tomato products are kept at a maintained temperature of 35 degrees Fahrenheit – approximately 1.6 degrees Celsius – for transport to the United States. For the above reasons, chilled tomatoes are specifically covered by Chapter 7, HTSUS, and the facts support the initial classification of the tomato products at-issue within heading 0702, HTSUS.
Furthermore, the processing of the tomato products at-issue does not rise to the long-standing CBP understanding of the terms “preserved” or “prepared” for classification in heading 2002, HTSUS. We note that in Headquarters Ruling Letter (“HQ”) H243645, dated September 30, 2015, CBP defined the term “preserved,” stating that:
It has been held that preservation in a tariff sense ordinarily involves cooking, salting, drying, smoking, curing, or the application of some method of process whereby the fresh or natural condition of the article is so changed as to be more or less a permanent preservation and that something more must be done to it than merely to arrest change and decomposition while in transit.
HQ H243645 also provided a definition for the term “prepared,” citing to HQ H226236 for the proposition that:
[T]he word “prepared” in a tariff sense, means, ordinarily, that a commodity has been so processed as to be advanced in condition and made more valuable for its intended use.
Turning first to the definition of “preserved,” there is nothing within the facts to suggest that the tomato products are “cook[ed], salt[ed], dr[ied], smok[ed], [or] cur[ed].” The only processing of the tomato products which requires a brief analysis is that involving whether or not a “more or less [] permanent preservation” has occurred so that “something more [was] done to [the tomato products] than merely to arrest change and decomposition while in transit.” However, as discussed, the processing of the tomato products is done to “merely to arrest change and decomposition while in transit.” Specifically, it has been established that the removal of certain edible parts of the tomatoes is done to “extend the shelf life of [the] sliced and diced products.” As the removal of these edible tomato parts does not rise to the definition of “preservation” within the context of Chapter 20, HTSUS.
Similarly, the refrigeration of the tomato products at a constant 35 degrees Fahrenheit does not result in the “preservation” of the goods at-issue. Rather, the tomato products are continuously refrigerated throughout the manufacturing process and during “transport[ation] to the United States and foreign customers.” Although inferences could provide a similar explanation as to why the tomato products are refrigerated at a consistent 35 degrees Fahrenheit during the manufacturing process, the tomato products are explicitly “refrigerated down to 35 degrees [Fahrenheit] [] while they are transported to the United States and foreign customers.” The facts provide that this export to the United States with “proper[] refrigerat[ion]” ensures that the tomato products are “ready-to-eat.” Since the refrigeration of the tomato products is explicitly to “arrest change and decomposition within transit,” it also does not rise to the definition of “preservation” within the context of Chapter 20, HTSUS.
CBP rulings demonstrate that the tomato products at-issue are not “prepared” or “preserved” within the context of Chapter 20, HTSUS, as the following vegetables discussed underwent similar processing and were retained within Chapter 7, HTSUS. In NY N143855, dated January 28, 2011, individually quick frozen (“IQF”) cherry tomatoes were classified under Chapter 7, HTSUS, with its ten-digit subheading dependent on the date of import. Like the tomato products here, the cherry tomatoes in NY N143855 were sliced and were not blanched or cooked; however, these tomatoes were frozen. Accordingly, they were classified in Chapter 7, HTSUS, although as frozen vegetables rather than fresh vegetables. In NY N027099, dated May 20, 2008, washed tomatoes were cut into halves or pieces prior to being dried, blast chilled, passed through an IQF tunnel, packed into plastic cases, and stored frozen. CBP held that this processing did not exclude the tomatoes from Chapter 7, HTSUS, and classified it therein with its ten-digit subheading dependent on the date of import. In HQ 088927, dated June 29, 1991, carrots which had been significantly reduced in size (over twenty-five percent) were classified within Chapter 7, HTSUS. CBP found that a such a reduction in size did not constitute a preparation nor preservation which warranted removal from Chapter 7, HTSUS, and classification within Chapter 20, HTSUS. As with each of the above, the processing of the tomato products supports its classification in Chapter 7, HTSUS.
Similarly, Green Giant Co. v. United States, 495 F.2d, C.A.D. 1117 (1974), also stands for the proposition that the tomato products at-issue are not “prepared” or “preserved” within the context of Chapter 20, HTSUS. In Green Giant, the court considered whether mushrooms which had been blanched in boiling water reading 212 degrees Fahrenheit for a period of 90 seconds were considered “prepared” or “preserved.” The court found that since the effects of blanching the mushrooms were “irreversible,” it constituted the blanching process as preservation. Here, the tomatoes are merely washed to “remove[] all dirt and foreign materials” from the tomatoes and to “bring[] them into compliance with all U.S. FDA and [third] party food safety requirements and standards.” Unlike the blanching of mushrooms in boiling water, there is no irreversible effect on the tomatoes themselves. Thus, Green Giant, also supports the classification of the tomato products at-issue within Chapter 7, HTSUS.
Additional cases cited in support of the classification of the tomato products at-issue within Chapter 20, HTSUS, can also be distinguished. In both HQ 084066, dated June 21, 1989 and HQ 953235, dated April 26, 1993, the tomatoes were subject to some form of heat treatment, either in the form of steaming or blanching in boiling water, in a similar manner to those tomatoes discussed in the Green Giant case. As discussed above, the heat treatment of the tomatoes, in steam or boiling water, results in an “irreversible” change and is readily distinguishable from mere washing to “remove[] all dirt and foreign materials” from the tomatoes and to “bring[] them into compliance with all U.S. FDA and [third] party food safety requirements and standards.” In NY A85202, dated July 25, 1996, HQ 950128, dated December 9, 1991 and HQ 089803, dated November 21, 1991, the tomato products primarily consisted of tomato puree and involved further processing. As noted within another CBP ruling, HQ 959822, dated June 24, 1997, the word “puree” specifically appears within Chapter 20, HTSUS, not Chapter 7, HTSUS. Here, none of the tomato products at-issue are “pureed” or prepared in any manner similar to a “puree.” Rather, the production of the tomato products is limited to those processes enumerated within Chapter 7, HTSUS. In NY H81182, dated May 31, 2001, the tomato product contained tomato juice, citric acid, and basil, in addition to tomato, and was determined to exceed the scope of preparation or preservation within Chapter 7, HTSUS. In contrast, the tomato products at-issue here to not contain additional ingredients which could act as preservatives, such as citric acid. Similarly, NY E83932, dated July 13, 1999, NY G81461, dated October 3, 2000, NY K80382, dated November 20, 2003, and NY L85187, dated June 1, 2005, also each contained additional ingredients and processing that served to preclude classification in Chapter 7, HTSUS. As noted, the tomato products at-issue here are either tomatoes themselves or a majority-tomato vegetable mixture, none of which contain any additional preservative ingredients which would preclude classification within Chapter 7, HTSUS.
For the above reasons, we find that the tomato products from Mexico were properly classified under heading 0702, HTSUS, which provides for “Tomatoes, fresh or chilled.” As noted within NY N316281, and throughout this ruling, the applicable ten-digit subheading for the tomato products from Mexico are dependent on when each product is entered into the United States. Accordingly, we affirm NY N316281, dated December 28, 2020, which correctly classified the tomato products from Mexico under Chapter 7, HTSUS.
Sincerely,
For Craig T. Clark, Director
Commercial and Trade Facilitation Division