OT:RR:CTF:FTM HQ H340768 LPO
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:
* * *
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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
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(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.”
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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
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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.
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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
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