HQ 950128
December 9,1991
CLA-2 CO:R:C:F 950128 JGH
Melvin E. Lazar, Esq.
Barnes, Richardson & Colburn
475 Park Avenue South
New York, N.Y. 10016
RE: Pomi Italian Fresh Tomato Finely Chopped - Product of Italy
Dear Mr. Lazar:
Your letter of August 12, 1991, concerns the classification
of a tomato preparation under the Harmonized Tariff Schedule
of the United States (HTSUS).
FACTS:
The product is said to be made by combining strained tomato
and chopped tomato, resulting in a homogeneous appearance and
consistency. One production line produces the strained tomatoes
(a puree) and the second unit, after peeling and cutting the
tomato, passes the tomato through a coarse sieve to produce the
finely chopped product. The output from the two units is then
pumped into a receiving tank where they are mixed. A report of
an independent laboratory described a sample, in a 35.48 ounce-
container, as containing a drained weight of tomato pieces of
1.201 oz.( 3.38%) of pack, and drained weight of tomato puree
of 34.28 oz.( 96.62%) of pack. By volume the product was said
to consist of 3.56% tomato pieces and 96.44% tomato puree. The
advertising literature submitted described the Pomi tomato as
being different than the peeled tomato which must be thickened
or tomato paste which must be diluted. "It is not...a sauce,
but...a base for sauces...". A sample product was described as
being in the form of a thick, pulpy liquid, in which are
suspended very small, soft, irregularly shaped tomato pieces.
It was said to have no salt, spices, flavorings, oil, or other
additives.
-2-
ISSUE:
Whether the finely chopped tomato product is classifiable
under the provision for sauces and preparations therefore in
heading 2103, HTSUS; other food prepartions not elsewhere
specified or included, in subheading 2106.90.60, HTSUS; or
other tomatoes prepared or preserved otherwise than by vinegar
or acetic acid, in subheading 2002.90.0050, HTSUS.
LAW AND ANALYSIS:
The Explanatory Notes to the HTSUS provide an interpretation
of the various tariff provisions on the international level.
Sauces and preparations for sauces are defined in the notes for
Heading 2103 as usually being of highly spiced character used to
flavor a variety of dishes and consisting of various ingredients
(eggs, vegetables, meat, flours, starches, oil, vinegar, sugar,
mustard,etc.).
It is claimed that the imported product falls within the
explanatory note guidelines for preparation for sauces for
heading 2103, especially in view of the decision (085922)
involving the classification of pear chutney. However, the
product does not consist of a preparation made from various
ingredients as the explanatory notes defines sauces, nor is it
a mixture of spices and other ingredients as was the pear
chutney. Rather, it is made of finely chopped and strained
tomatoes, and tomato puree, and is described by the manufacturer
as a base for a sauce.
In the alternative it is suggested that it is classifiable
under the provision for other food preparations
not elsewhere specified in subheading 2106.90.60, HTSUS. As
stated in your submission, heading 2106 is to be considered if
the product is not more specifically described in another
provision of the HTSUS.
The food preparations of heading 2106 are generally
considered to be mixtures of food ingredients to be used in or
with other foods. As stated, the import is exclusively tomato
and not a mixed ingredient product. A tomato preparation with
a percentage by volume of about 96% strained tomato (puree) and
4% tomato pieces, is more specifically classified in heading
2002, HTSUS, since it is exclusively a prepared or preserved
tomato preparation of the type described in the explanatory
notes. However, a canned tomato product containing a puree
with a drained weight of 96% is something more than whole
tomatoes or tomatoes in pieces.
-3-
HOLDING:
The tomato preparation described above is classifiable in
the provision for other tomatoes prepared or preserved otherwise
than by vinegar or acetic acid, in subheading 2002.90.0050,
HTSUS. The rate of duty is 13.6% ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division
Hurley library/peh
950128
8cc CIE