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).


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.


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.



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.


John Durant, Director
Commercial Rulings Division

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