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HQ 084066


June 21, 1989

CLA-2 CO:R:C:G 084066 JGH

CATEGORY: CLASSIFICATION

TARIFF NO.: 2002.10.0040

Mr. Joseph Musco
Musco Food Corporation
56-1258th Street
Maspeth, New York 11378

RE: Classification of dried, salted and steamed Tomatoes from Italy

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.

FACTS:

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.

ISSUE:

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 drying.

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.

HOLDING:

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.

Sincerely,

John Durant, Director

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