CLA-2 CO:R:C:G 084066 JGH
Mr. Joseph Musco
Musco Food Corporation
Maspeth, New York 11378
RE: Classification of dried, salted and steamed Tomatoes
Dear Mr. Musco:
Your letter of March 27, 1989, concerns the tariff status
under the Harmonized Tariff Schedule of the United States (HTSUS)
of dried tomatoes.
The product consists of tomatoes which have been washed, cut
in half, placed on drying screens, and sprinkled with salt. They
are then sun dried for 38 to 44 hours, until the moisture content
is 11 to 13 percent. They are then packed in plastic lined
cartons containing 10 to 15 kilograms and refrigerated until
shipment Prior to shipment the tomatoes are passed through steam
at 100 degrees C. for three minutes to eliminate bacteria.
Whether tomatoes prepared in the manner described are
classifiable under the provision for dried vegetables, whole or
cut, sliced, broken or in powder, but not further processed in
subheading 0712.90.75, HTSUS, or the provision for tomatoes
prepared or preserved otherwise than by vinegar or acetic acid in
subheading 2002.10.0040, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is governed by the General
Rules of Interpretation (GRI). GRI 1 provides that
classification is determined first in accordance with the
headings and relative Section and Chapter Notes. The Explanatory
Notes to heading 0712, dried vegetables, state that the heading
covers vegetables which have been dried (including dehydrated,
evaporated, or freeze dried), i.e., with their natural water
content removed by various processes.
It is your contention that the steaming of the tomatoes to
remove the bacteria is not a preparation or preservation step,
but merely a cleaning process, and, therefore, the products
remain dried tomatoes.
In Green Giant Co. v. United States, (C.A.D. 1117) the court
considered the question of whether the blanching of mushrooms was
a step in the preparation of the vegetable. The mushrooms were
subjected to boiling water for a period of 90 seconds. The
purpose was to remove the bacteria and inactivate surface
enzymes. The court concluded that the effects of blanching were
irreversible and constituted a preservation step.
In this case the tomatoes are subjected to a steam
processing at 100 degrees C. for a period of 3 minutes to
eliminate bacteria. It is believed that this steaming is no less
a preservation processing than the blanching of the mushrooms,
and that the tomatoes are subjected to a processing beyond
Information from trade sources is that dried tomatoes are
produced by a drying process as described; although salt may be
added in some cases, it is not essential. The added step of
steaming the tomatoes for three minutes would restore some of the
moisture and remove the tomatoes from the dried category and
place them in a prepared or preserved classification.
Dried, salted tomatoes which have been subjected to a steam
processing to eliminate bacteria are classifiable under the
provision for other prepared or preserved tomatoes in subheading
2002.10.0040, HTSUS. Pursuant to Presidential Proclamation 5759,
dated December 24,1987, imports of certain products from the
European Community are subject to increased duties. Subheading
9903.23.15, HTSUS, covering one of the categories in the
proclamation, provides that tomatoes prepared or preserved
classified in subheading 2002.10.00, HTSUS, are subject to a rate
of duty of 100 percent ad valorem.
John Durant, Director
Commercial Rulings Division