Tomatoes, prepared or preserved - "Il Duca", product of Spain

HQ 089803 November 21,1991 CLA-2 CO:R:C:G 089803 JGH CATEGORY: Classification TARIFF NO.: 2002.10.00 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 However, it is now understood that the request for reconsideration has been withdrawn.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