Protest and Application for Further Review of Protest No. 4601-24-137284; Tariff Classification of Certain Canned Tomato Products

H340768 June 25, 2025 OT:RR:CTF:FTM HQ H340768 LPO CATEGORY: Classification TARIFF NO.: 2002.10.00 Center Director Agriculture and Prepared Products Center of Excellence and Expertise U.S. Customs and Border Protection 6601 NW 25th Street Miami, Florida 33122 Attn: Allison Clinton, Supervisory Import Specialist Re: Protest and Application for Further Review of Protest No. 4601-24-137284; Tariff Classification of Certain Canned Tomato Products Dear Center Director: This letter is in regards to the Application for Further Review (“AFR”) of Protest No. 4601-24-137284, timely filed on May 20, 2024, by Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP, on behalf of Mangia, Inc. (“Protestant”), concerning the tariff classification of whole peeled tomatoes in puree and crushed tomatoes in puree under the Harmonized Tariff Schedule of the United States (“HTSUS”). FACTS: Protestant describes the subject merchandise as whole peeled tomatoes in puree and crushed tomatoes in puree from Italy. The whole peeled tomatoes in puree are said to contain 65% tomatoes and 35% tomato puree. The crushed tomatoes in puree are said to be in a “heavy puree,” and no percentages were provided for the components. Protestant states that the subject merchandise is imported in drums for further processing into tomato sauces or other tomato- based products after importation and are manufactured and marketed for this purpose. The subject merchandise covers three entries entered between October 31, 2023, and November 21, 2023. At the time of entry, the subject tomato products were classified under subheading 2103.90.90, HTSUS, which provides for “Sauces and preparations therefore; mixed condiments and mixed seasonings; mustard flour and meal and prepared mustard: Other: Other.” The general rate of duty upon importation was 6.4% ad valorem. CBP rate advanced the tomato products under subheading 2002.10.00, HTSUS, which provides for “Tomatoes prepared or preserved otherwise than by vinegar or acetic acid… Tomatoes, whole or in pieces,” for which the 2023 column one general rate of duty is 12.5% ad valorem. The entries were liquidated on April 12, 2024 and Protestant filed the subject protest and AFR on May 20, 2024. ISSUE: What is the tariff classification of the subject whole peeled tomatoes in puree and crushed tomatoes in puree? LAW AND ANALYSIS: Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed within 180 days of liquidation of the first entry. See 19 U.S.C. § 1514(c)(3). Further Review of Protest No. 4601-24-137284 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts. Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The 2023 HTSUS provisions under consideration are as follows: 2002 Tomatoes prepared or preserved otherwise than by vinegar or acetic acid: 2002.10.00 Tomatoes, whole or in pieces 2103 Sauces and preparations therefore; mixed condiments and mixed seasonings; mustard flour and meal and prepared mustard: * * * 2103.90 Other: * * * 2 Other: * * * 2103.90.90 Other: * * * Additional U.S. Note 3 to Chapter 21, HTSUS, provides as follows: For the purposes of this chapter, the term “mixed condiments and mixed seasonings described in additional U.S. note 3 to this chapter” means articles containing over 10 percent by dry weight of sugars derived from sugar cane or sugar beets, whether or not mixed with other ingredients, except (a) articles not principally of crystalline structure or not in dry amorphous form that are prepared for marketing to the ultimate consumer in the identical form and package in which imported; or (b) cake decorations and similar products to be used in the same condition as imported without any further processing other than the direct application to individual pastries or confections, finely ground or masticated coconut meat or juice thereof mixed with those sugars, and sauces and preparations therefor. In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989). The EN to heading 20.02 provides, in pertinent part, that: 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 heading also includes homogenised prepared or preserved tomatoes (e.g., tomato purée, paste or concentrate), however the heading excludes tomato ketchup and other tomato sauces (heading 21.03)[.] The EN to 21.03(A) provides, in pertinent part, that: (A) SAUCES AND PREPARATIONS THEREFOR; MIXED CONDIMENTS AND MIXED SEASONINGS This heading covers preparations, generally of a highly spiced character, used to flavour certain dishes (meat, fish, salads, etc.), and made from various ingredients 3 (eggs, vegetables, meat, fruit, flours, starches, oil, vinegar, sugar, spices, mustard, flavourings, etc.). Sauces are generally in liquid form and preparations for sauces are usually in the form of powders to which only milk, water, etc. need to be added to obtain a sauce. Sauces are normally added to a food as it cooks or as it is served. Sauces provide flavour, moisture, and a contrast in texture and colour. They may also serve as a medium in which food is contained, for example, the velouté sauce of creamed chicken. Seasoning liquids (soy sauce, hot pepper sauce, fish sauce) are used both as ingredients in cooking and at table as condiments. The heading also includes certain preparations, based on vegetables or fruit, which are mainly liquids, emulsions or suspensions, and sometimes contain visible pieces of vegetables or fruit. These preparations differ from prepared or preserved vegetables and fruit of Chapter 20 in that they are used as sauces, i.e., as an accompaniment to food or in the preparation of certain food dishes, but are not intended to be eaten by themselves. Mixed condiments and mixed seasonings containing spices differ from the spices and mixed spices of headings 09.04 to 09.10 in that they also contain one or more flavouring or seasoning substances of Chapters other than Chapter 9, in such proportions that the mixture has no longer the essential character of a spice within the meaning of Chapter 9 (see the General Explanatory Note to that Chapter). Examples of products covered by the heading are : mayonnaise, salad dressings, Béarnaise, bolognaise (consisting of chopped meat, tomato purée, spices, etc.), soya sauces, mushroom sauce, Worcester sauce (generally made with a base of thick soya sauce, an infusion of spices in vinegar, with added salt, sugar, caramel and mustard), tomato ketchup (a preparation made from tomato purée, sugar, vinegar, salt and spices) and other tomato sauces, celery salt (a mixture of cooking salt and finely ground celery seeds), certain mixed seasonings for sausage making, and products of Chapter 22 (other than those of heading 22.09) prepared for culinary purposes and thereby rendered unsuitable for consumption as beverages (e.g., cooking wines and cooking Cognac). This heading also covers mixtures of plants or parts of plants of heading 12.11 of a kind used for seasoning sauces. * * * Protestant contends that the subject whole peeled tomatoes in puree and crushed tomatoes in puree should be classified in heading 2103, HTSUS, because they are preparations imported in bulk that are used to produce finished sauces. Mangia further asserts that the products are described by heading 2103, HTSUS, and ENs, particularly emphasizing that the ENs describe the heading as including “certain preparations, based on vegetables or fruit, which are mainly liquids, emulsions or suspensions, and sometimes contain visible pieces of vegetables or fruit.” 4 Additionally, Protestant claims that the subject merchandise is identical to that at issue in Orlando Food Corp. v. United States, 140 F.3d 1437 (Fed. Cir. 1998). In Orlando, the Court of Appeals for the Federal Circuit found that a canned tomato product consisting of approximately 60% whole, peeled tomatoes and 40% tomato puree, by weight, together with salt, citric acid and a basil leaf, used as a preparation for a sauce, was described by the terms of both heading 2002, HTSUS (tomatoes prepared or preserved otherwise than by vinegar or acetic acid), and heading 2103, HTSUS (sauces and preparations therefor). Id. at 1441. Applying GRI 3(a), the court concluded that heading 2103, HTSUS, more specifically described the merchandise than heading 2002, HTSUS, notwithstanding the clearly visible large pieces and quantities of tomato present, so that proper classification was in heading 2103, HTSUS. Id. We find that the subject whole peeled tomatoes in puree and crushed tomatoes in puree can be distinguished from the products at issue in Orlando and other preparations for sauce classified in heading 2103, HTSUS. Notably, the canned tomato product of Orlando did not only consist of peeled tomatoes in puree, but also included salt, citric acid and a basil leaf. The subject products do not include such additional seasoning ingredients. The Orlando court adopted the analysis used by the U.S Court of International Trade (“C.I.T.”) in its decision to classify a highly similar product in heading 2103, HTSUS. See Nestle Refrigerated Food Co. v. United States, 18 C.I.T. 661 (1994). The product at issue in Nestle consisted of canned tomato pieces, tomato puree, basil, citric acid, and salt. Id. at 662. The C.I.T. in Nestle explained that this product was a preparation for a sauce in heading 2103 not only because it was intended to be used as a “substantially advanced base or intermediate of a finished pasta sauce,” but also because it was “composed of several ingredients that are processed through a specifically designed series of steps.” Id. at 677. In E.T.I.C., Inc. v. United States, the C.I.T. cited to Orlando in classifying another canned product containing tomatoes, salt, basil, and citric acid as a preparation for sauce in heading 2103. E.T.I.C., Inc. v. United States, 26 C.I.T. 1293, 1294 (2002). Protestant asserts that the subject products are sold to domestic processers who produce sauces or other tomato-based products for their consumers, but the record does not reflect that they are “substantially advanced” bases for sauce, and it is not composed of multiple ingredients such as the products that were at issue in Nestle, Orlando, and E.T.I.C.. While Protestant claims that the subject products fit squarely within the ENs to heading 2103, HTSUS, we note that the ENs are not legally binding. Additionally, the federal courts are instructive as to which tomato-based products are appropriately classified in that heading and the court in Nestle, Orlando, and E.T.I.C. make it clear that the subject whole peeled tomatoes in puree and crushed tomatoes in puree are not other preparations for sauce classified in heading 2103, HTSUS. CBP has previously classified products similar to the subject products in heading 2002, HTSUS. In Headquarters Ruling Letter (“HQ”) 950128, dated December 9, 1991, a product consisting of canned tomato pieces (3.38%) and tomato puree (96.62%) with no salt, spices, or other additives was classified in heading 2002, HTSUS. This ruling found that the product was not a preparation for sauces in heading 2103, stating, “the product does not consist of a preparation made from various ingredients as the explanatory notes defines sauces... [r]ather, it is made of finely chopped and strained tomatoes, and tomato puree, and is described by the manufacturer as a base for a sauce.” See also HQ 089803, dated November 21, 1991, in which a 5 similar product, found by a Customs laboratory to consist of “approximately equal amounts of tomato parts (up to 1/4 of a tomato) and tomato puree…with less than 0.6% salt” and “no spices or other food elements,” was classified in heading 2002, HTSUS. In this ruling, CBP noted that the product could be considered a base for a sauce but was not a sauce or preparation in itself and therefore that product was not classifiable in heading 2103, HTSUS, at the time of importation because it was “made but from a single vegetable,” despite containing a small amount of salt. We find that the subject canned whole peeled tomatoes and crushed tomatoes in puree are analogous to the products at issue in HQ 950128 and HQ 089803 in that the subject products contain a single vegetable – tomatoes and tomato puree – with no seasonings or other spices. As CBP found that the tomato product containing salt in HQ 089803 was not seasoned enough to constitute a preparation for sauce in heading 2103, HTSUS, the products in this protest, which do not contain salt or other ingredients besides tomato, are appropriately classified in heading 2002, HTSUS. The CBP rulings cited by Protestant to support a classification in heading 2103, HTSUS, can all be distinguished from the products at hand. Specifically, the cited rulings involved canned tomatoes with puree or juice and added ingredients such as basil, salt and citric acid. See New York Ruling Letter (“NY’) N059775, dated May 26, 2009, NY N021599, dated January 31, 2008, NY N007522, dated March 15, 2007, and NY L88750, dated November 18, 2005. The subject tomato products have no such additional seasonings and ingredients, but are simply tomato products. Thus, we conclude that the subject tomato products meet the terms of heading 2002, HTSUS, and specifically subheading 2002.10.00, HTSUS, which provides for “Tomatoes prepared or preserved otherwise than by vinegar or acetic acid: Tomatoes, whole or in pieces” for which the 2023 column one general rate of duty is 12.5% ad valorem. HOLDING: By application of GRI 1, the subject whole peeled tomatoes in puree and crushed tomatoes in puree are classified under heading 2002, HTSUS, and specifically subheading 2002.10.00, HTSUS, which provides for “Tomatoes prepared or preserved otherwise than by vinegar or acetic acid: Tomatoes, whole or in pieces.” The 2023 column one general rate of duty is 12.5% ad valorem. You are instructed to DENY the protest. 6 You are instructed to notify the Protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution. Sincerely, Yuliya A. Gulis, Director Commercial and Trade Facilitation Division 7