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HQ

559841

July
25, 1996

CLA-2 RR:TC:SM 559841 BLS 559841

CATEGORY: CLASSIFICATION

Port Director
# 1 LA Puntilla Street
San Juan, P.R. 00901

RE: Tariff treatment applicable to Tomato Sauce produced in Dominican Republic; CBERA; substantial transformation; product of

Dear Sir:

This is in reference to a letter dated April 23, 1996, from Totti, Rodriguez, Diaz & Fuentes, on behalf of Caribex Dominica S.A., requesting a ruling that a seasoned tomato product is eligible for duty-free treatment under the Caribbean Basin Economic Recovery Act (CBERA) (19 U.S.C. 2701-2706).

FACTS:

The imported product, "Tomato Sauce, Spanish-Style", is a seasoned tomato stew used for cooking traditional Hispanic dishes as well as to marinate meats and fish.
The product is composed of tomato paste concentrate, various spices, modified corn starch, beet powder, and water. Water is the primary ingredient by weight, 81%, followed by the tomato paste, which comprises approximately 13% of the product's weight.

The production of the tomato sauce is as follows: After the tomato paste is inspected, starch, spices and water are added to the paste. The mixture is cooked at 180 degrees Fahrenheit for five to 15 minutes, until the desired aroma, consistency, and flavor are achieved. The cooked product is then subjected to further quality control tests to assure that all chemical and physical values are within acceptable levels. The product is then filtered at 0.017 inches and pasteurized at 200-205 degrees Fahrenheit. After pasteurization, the product goes to a flash tank to de-aerate. Lastly, the tomato sauce is canned, seamed, and cooled with chilled water. Once the cooling process is complete, the cans are dried, labeled, packed, shrink-wrapped, and stored for shipment.

The current process utilizes tomato paste made in the U.S. However, under a
second scenario, the tomato paste would be sourced from South America, especially
Chile and Peru. The other ingredients are sourced primarily from the U.S.

ISSUE:

Whether the "Tomato Sauce, Spanish Style" is eligible for duty-free treatment under the CBERA.

LAW AND ANALYSIS:

Under the CBERA, eligible articles the growth, product, or manufacture of designated beneficiary countries (BC's), may enter the U.S. free of duty if such articles are imported directly to the U.S. from the BC, and if the sum of 1) the cost or value of the materials produced in a BC or BC's, plus 2) the direct cost of processing operations performed in a BC or BC's, is not less than 35% of the appraised value of the article at the time it is entered into the U.S. See 19 U.S.C. 2703(a). The cost or value of materials produced in the U.S. may be applied toward the 35% value-content minimum in an amount not to exceed 15% of the imported article's appraised value. See, section 10.195(c), Customs Regulations (19 CFR 10.195(c)).

An article is considered to be the growth, product, or manufacture of a BC if it is produced exclusively from materials which are wholly the growth, product, or manufacture of a BC or, if the article consists of materials imported into a BC from a non-BC, those materials are substantially transformed in the BC in the production of the article. See 19 CFR 10.195(a). Similarly, the cost or value of materials which are used in the production of the article may be counted toward the 35 percent value-content requirement if they are either wholly the growth, product, or manufacture of a BC or BC's, or have been substantially transformed in a BC or BC's into a new or different article of commerce, which is itself substantially transformed in the production of the final article. See section 10.196(a), Customs Regulations (19 CFR 10.196(a)).

A substantial transformation occurs when an article emerges from a process with a new name, character or use different from that possessed by the article prior to processing. See Texas Instruments v. United States, 69 CCPA 152, 681 F.2d 778 (1982).

The Dominican Republic is a BC. See General Note 7, Harmonized Tariff Schedule of the United States (HTSUS). Moreover, the imported tomato sauce
appears to be properly classifiable under subheading 2103.20.40, HTSUS, which provides for sauces, tomato ketchup and other tomato sauces, other, which is a
CBERA eligible provision. Therefore, the articles will receive duty-free treatment if they are considered to be the "product of" the Dominican Republic, the 35% value-content minimum is met, and the goods are "imported directly" into the U.S.

"Product Of"

As the tomato sauce under this scenario will be made from tomato paste and other ingredients sourced primarily from the U.S., the imported product will be considered to be the "product of" the Dominican Republic only if the non-BC ingredients are substantially transformed in the Dominican Republic into a new or different article of commerce.

In Headquarters Ruling Letter (HRL) 555524 dated April 11, 1990, eleven different ingredients were mixed with water, boiled until the desired consistency was achieved, packaged for retail sale, and quick-frozen. We found in that case that the processing in the BC resulted in a substantial transformation of those ingredients into a new and different article of commerce-- frozen vegetable soup--different in name, character and use from the separate ingredients. We noted that each ingredient lost its separate identity when combined with the other ingredients and water, which combination was then boiled, and subsequently frozen to create the final product, which had its own distinct commercial and physical identity.

A similar finding of a substantial transformation was made in HRL 734076 (September 10, 1991), in connection with the mixing/blending of foreign tomato powder with U.S.-origin ingredients to make seasoning mixes. In that case, the issue was whether the seasoning mix had to be marked with the country of origin of the tomato powder when withdrawn from a foreign trade zone. We found in that case that a new and different article of commerce was created as a result of the combining/mixing of various ingredients according to a designated recipe/formula.
In the instant case, we find that mixing the tomato paste and other ingredients together, cooking the mixture, filtering, pasteurizing, canning and cooling, results in a product, "Tomato Sauce, Spanish Style", which has a name, character and use distinct from the ingredients from which it was made. In this regard, we find that this process is clearly more than a simple combining or packaging operation, as
described in 19 CFR 10.195(a). Under the circumstances, we find that the tomato paste and other ingredients undergo a substantial transformation, and that the imported tomato sauce is a "product of" the Dominican Republic.

35% Value Content Requirement

The importer states that the 35% value-content requirement will be satisfied based on the direct cost of processing operations performed in the Dominican Republic, without including the cost or value of U.S. ingredients (up to 15%), when such materials are used. A table included with the submission reflects that the current value added in the Dominican Republic, which includes "Direct labor" and "Overhead" represents approximately 58% of the total cost of the product. The total BC costs increase by less than one percent when the tomato paste is sourced from either Chile or Peru.

We are unable to state definitively that the value-content requirement is satisfied, since the importer has not provided a breakdown of "Overhead." (See 19 CFR 10.197 for examples of items that may be included as direct costs of processing operations and items that may not be so included.)

Accordingly, the imported tomato sauce will be entitled to duty-free treatment under the CBERA provided 1) the importer is able to support its claim through more detailed information that the direct costs of processing operations incurred in the Dominican Republic to produce the tomato sauce is not less than 35 percent of the appraised value of the imported product; and 2) the tomato sauce is imported directly from the Dominican Republic. U.S.-origin ingredients may be applied toward the 35% value content minimum subject to a 15% cap.

HOLDING:

Based on the information submitted, the ingredients imported into the Dominican Republic will undergo a substantial transformation in the creation of the product, "Tomato Sauce, Spanish Style." Therefore, the tomato sauce will be considered a "product of" the Dominican Republic when imported into the U.S.

Provided that the direct costs of processing operations is not less than 35 percent of the appraised value of the imported product (including the value of U.S. ingredients where applicable, up to a cap of 15%), and the tomato sauce is imported directly from the Dominican Republic, the imported articles will be entitled to duty-
free treatment under the CBERA. Whether the 35 percent test is met must await actual entry of the merchandise.

A copy of this ruling should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,


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