OT:RR:CTF:FTM H344166 PJG
Center Director
U.S. Customs and Border Protection
Agriculture and Prepared Products
Center of Excellence and Expertise
301 E. Ocean Blvd.
Long Beach, California 90802
Attn: Yvonne Hernandez, Supervisory Import Specialist
RE: Application for Further Review of Protest No. 4601-24-137774; Tariff Classification of
Certain Tomato Product
Dear Center Director:
This letter is in reference to the Application for Further Review (“AFR”) of Protest No.
4601-24-137774, timely filed on September 23, 2024, by Grunfeld, Desiderio, Lebowitz,
Silverman & Klestadt, LLP, on behalf of their client, Mangia, Inc. (“Protestant”), concerning the
tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of a
tomato product.
The Protestant requested that certain information submitted in connection with this
request be treated as confidential. Inasmuch as this request conforms to the requirements of 19
C.F.R. § 177.2(b)(7), the request for confidentiality is approved. The information that was
specified will not be released to the public and will be withheld from published versions of this
decision.
FACTS:
This case concerns one variety of a tomato product. According to the Protestant, the
product is an “unfinished pizza sauce” that is an “intermediate tomato product[]” imported in
bulk and contained in metal drums at importation. At the time of importation, the Protestant
states that the product contains “tomato puree, olive oil, onion, salt, garlic, carrots, oregano and
basil.” Tomato is indicated to be the predominate ingredient. The Protestant states that the
products are “marketed and sold as a tomato-based preparation for sauce” and “sold to U.S. food
processors…for further processing,” which involves kettle heating/cooking and the addition of
other ingredients. The Protestant clarified that the product “is not available online because it is a
custom preparation for a specific client.” The Protestant further states that the product, in its
condition at importation, is not usable as a sauce and must be further processed before
consumption and provides an affidavit from a U.S. customer in support of its contention that the
product is used as a base for producing a finished sauce. Prior to the submission of the protest
and AFR, U.S. Customs and Border Protection (“CBP”) was also provided additional
background materials, including a manufacturing flowchart concerning the subject product.
The two entries that are the subject of this protest are dated February 25, 2024 and May
2, 2024, and were liquidated on April 12, 2024 and June 28, 2024, respectively. The subject
tomato product was entered 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: Other.” CBP liquidated the entry lines containing these articles
under subheading 2103.20.40, HTSUS, which provides for “Sauces and preparations therefore;
mixed condiments and mixed seasonings; mustard flour and meal and prepared mustard: Tomato
ketchup and other tomato sauces: Other.” The subject protest and AFR was filed on and
September 23, 2024 and Protestant claims that the product was correctly classified at entry.
ISSUE:
What is the proper tariff classification of the subject tomato product under the HTSUS?
LAW AND ANALYSIS:
Initially, we note that this matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision
on classification and rate and amount of duties chargeable. The protest was timely filed within
180 days of liquidation. See 19 U.S.C. § 1514(c)(3).
The Protestant alleges that Further Review of Protest No. 4601-24-137774 should be
accorded 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. We find that Further Review of
Protest No. 4601-24-137774 is properly accorded to the Protestant pursuant to 19 C.F.R. §
174.24(b).
Classification under the HTSUS is made 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 GRI may then be applied.
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The 2024 HTSUS provisions under consideration are as follows:
2103 Sauces and preparations therefore; mixed condiments and mixed seasonings;
mustard flour and meal and prepared mustard:
* * *
2103.20 Tomato ketchup and other tomato sauces:
* * *
2103.20.40 Other:
* * *
2103.90 Other:
* * *
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.
The Harmonized Commodity Description and Coding System Explanatory Notes
(“EN”) constitute the “official interpretation of the Harmonized System” at the international
level. See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). While neither legally binding nor
dispositive, the EN “provide a commentary on the scope of each heading” of the HTSUS and are
“generally indicative of [the] proper interpretation” of these headings. See id.
The EN to 21.03 provides, in relevant part, as follows:
(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 (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.
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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.
* * *
In this case, there is no dispute regarding the classification of the product at the heading
level, specifically, under heading 2103, HTSUS, which provides for “Sauces and preparations
therefore; mixed condiments and mixed seasonings; mustard flour and meal and prepared
mustard.” We agree that the product is classifiable under heading 2103, HTSUS, as “Sauces and
preparations therefore” and no other heading is applicable in this case. In particular, we agree
with the Protestant that the subject product is classified as a preparation for a sauce under
heading 2103, HTSUS. In Orlando Food Corp. v. United States, the Court of Appeals for the
Federal Circuit determined that the product in that case, which was “comprised of whole
tomatoes, tomato puree, basil, salt, and citric acid” and “used solely as an advanced base or
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preparation for sauces,” was classifiable under heading 2103, HTSUS. 1 Orlando Food Corp. v.
United States, 140 F.3d 1437, 1441 (Fed. Cir. 1998) (citing Nestle Refrigerated Food Co. v.
United States, 18 C.I.T. 661, 675 (1994) (finding that a product consisting of tomato pieces,
tomato puree, “basil, salt, and citric acid” was “a preparation for sauce because it is a product
processed according to specifications and is intended to be used as a base of a sauce” and “is
solely used as a substantially advanced preparation for sauce”). The court also indicated that
“producing a preparation for a sauce necessarily involves some degree of processing or addition
of ingredients.” Orlando Food Corp., 140 F.3d at 1441. In this case, the Protestant indicates that
the product is custom prepared for a particular customer and the product is not intended to be
eaten with food without further processing, which involves kettle heating/cooking and the
addition of other ingredients. The affidavit submitted by the Protestant supports that the product
is not intended or actually used in the form in which it is imported and is used instead as an
intermediate base for producing a finished sauce.
The dispute concerns the classification of the product at the subheading level,
specifically, whether the product should be classified under subheading 2103.20, HTSUS, as
“other tomato sauces,” or subheading 2103.90, HTSUS, as “Other.” 2 In Nestle Refrigerated
Food Co. v. United States, 18 C.I.T. 661 (1994), the CIT considered the common meaning of the
term “sauce” in order to understand the meaning of the words “other tomato sauces,” which is
found in subheading 2103.20.40, HTSUS. In doing so, the court considered the seminal decision
of Bogle v. Malone, wherein the U.S. Supreme Court determined the following:
The word “sauce,” as commonly used, designates a condiment, generally but not
always of liquid form, eaten as an addition to and together with a dish of food, to
give it flavor and make it more palatable; and is not applied to anything which is
eaten, alone or with a bit of bread, either for its own sake only, or to stimulate the
appetite for other food to be eaten afterwards.
Nestle Refrigerated Food Co., 18 C.I.T. at 668 (citing Bogle v. Malone, 152 U.S. 623, 625-26
(1894)) (subsequently followed by Del Gaizo Distrib. Corp. v. United States, 24 C.C.P.A. 64,
T.D. 48376 (1936)). The Nestle court concluded that the U.S. Supreme Court’s definition “is
consistent with the Oxford English Dictionary, which defines ‘sauce’ as ‘any preparation, usually
liquid or soft, and often consisting of several ingredients, intended to be eaten as an appetizing
accompaniment to some article of food.’” Id. at 668 (citing 14 Oxford English Dictionary 512
(2d ed. 1989)). The Nestle court found that there are two prerequisites for “other tomato
sauces”, specifically: “(1) the product must be a sauce; and (2) tomatoes must be the primary
ingredient of that sauce.” Id. at 668-669. Moreover, the court stated that this provision may
1
In that case, the court also determined that the product was classifiable under heading 2002, HTSUS, because the
addition of “incidental spices” did not “change[] the essential tomato character of the product.” Id. at 1440-1441.
We note that heading 2002, HTSUS, is not at issue in this protest.
2
The parties are not contending that the product is classified under subheadings 2103.10.00, HTSUS, which
provides for “Sauces and preparations therefore; mixed condiments and mixed seasonings; mustard flour and meal
and prepared mustard: Soy sauce,” 2103.20, HTSUS, which provides for “Sauces and preparations therefore; mixed
condiments and mixed seasonings; mustard flour and meal and prepared mustard: Tomato ketchup,” or 2103.30,
HTSUS, which provides for “Sauces and preparations therefore; mixed condiments and mixed seasonings; mustard
flour and meal and prepared mustard: Mustard flour and meal and prepared mustard,” therefore, we will not address
those provisions.
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apply to smooth tomato sauces and “other non-standardized tomato-based sauces, such as pasta
sauces, chili sauces, barbecue sauces, and pizza sauces” and that chunky sauces are also
encompassed by the term “other tomato sauces.” Id. at 669. The court further indicated that
“[t]o determine whether a product fits within the common meaning of tomato sauce, the court
will examine a variety of key features, including its ingredients, flavor, aroma, texture,
consistency, actual and intended use, and marketing,” with actual and intended use being the
features that “are of paramount importance” in making this determination. Id. at 671. The court
also indicated that “[a]mong the physical characteristics (i.e. ingredients, flavor, aroma, texture
and consistency)…flavor and the amount of seasoning are most significant.” Id. While the
predominate ingredient of the product in this case is said to be tomato, we have determined that it
is not a sauce after considering the actual and intended use of the product, which the court
indicated were paramount features. See id. As stated above in the context of classifying the
product at the heading level, the subject product is not a sauce because it is not intended to be
eaten with food without further processing, which involves kettle heating/cooking and the
addition of other ingredients. Moreover, the affidavit submitted by the Protestant supports that
the product is not intended or actually used in the form in which it is imported and is used
instead as an intermediate base for producing a finished sauce. Accordingly, we conclude that
the subject product is not classifiable as “other tomato sauces” under subheading 2103.20,
HTSUS.
Next, we consider whether the subject product is classifiable in subheading 2103.90,
HTSUS, which provides for “Sauces and preparations therefore; mixed condiments and mixed
seasonings; mustard flour and meal and prepared mustard: Other.” Subheading 2103.90,
HTSUS, is a “basket” or residual provision that is applicable to the subject product because the
product is not classifiable more specifically elsewhere. See EM Industries, Inc. v. United States,
22 Ct. Int’l Trade 156, 165 (1998) (“‘Basket’ or residual provisions of HTSUS Headings . . . are
intended as a broad catch-all to encompass the classification of articles for which there is no
more specifically applicable subheading.”). Given the ingredient composition of the subject
product, it is not classifiable under subheading 2103.90.20, HTSUS, which provides for “Sauces
and preparations therefore; mixed condiments and mixed seasonings; mustard flour and meal and
prepared mustard: Other: Sauces derived or prepared from fish,” or subheading 2103.90.40,
HTSUS, which provides for “Sauces and preparations therefore; mixed condiments and mixed
seasonings; mustard flour and meal and prepared mustard: Other: Nonalcoholic preparations of
yeast extract (other than sauces).” Also, as a preparation for a sauce, the product is not
classifiable under subheadings 2103.90.72 through 2103.90.80, HTSUS, which are provisions
that provide for “Mixed condiments and mixed seasonings.” Accordingly, the subject product is
classified under the “basket” or residual provision 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: Other.”
HOLDING:
Under the authority of GRI 1 and 6, the subject tomato product is classified under
heading 2103, HTSUS, and specifically, in 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: Other.”
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You are instructed to GRANT the protest.
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
the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/,
or other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division
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