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HQ 953235

April 26,1993

CLA-2 CO:R:C:F 953235 JGH


TARIFF NO.: 2002.10.0050/9903.23.17

Patrick T. O'Brien, Esq.
Baker & McKenzie
Suite 1600 Barnett Tower
701 Brickell Avenue
Miami, Florida 33131

RE: Classification of canned tomatoes from Italy. - Reconsideration of NYRL 878307

Dear Mr. O'Brien:

Your request for the reclassification of certain canned tomatoes from Italy has been referred to this office for review.


It is claimed that "vine-ripened tomatoes will be picked, boiled and packed, either whole or sliced, in "tin" cans." After being picked, they are rinsed, in water, peeled, canned (in 5-lb cans or larger) and boiled in water. The entire process is said to take about six hours.

The sample submitted to Customs was said to consist of peeled, whole, canned, boiled tomatoes in a liquid tomato concentrate.

In NYRL 878307, dated October 13, 1992, it was ruled that the canned tomatoes were classified as tomatoes prepared or preserved otherwise than by vinegar or acetic acid, tomatoes, whole or in pieces, other: in air tight containers, in subheading 2002.10.0050, HTSUS. As a product of the European Community (EC) (Italy), articles classifiable in this subheading are subject to a 100 percent rate of duty following subheading 9903.23.17, HTS.


Classification of tomatoes prepared in the manner described under the HTSUS. - 2 -


It is argued that the tomatoes canned in the manner described are not prepared or preserved within the meaning of heading 2002, but remain fresh as described in heading 0702, HTSUS. It is claimed that the Explanatory Notes permit vegetables to be classified in heading 0702 even though they are in air-tight containers, and include vegetables "whether fresh, chilled, frozen (uncooked or cooked by steaming or boiling in water)."

The Explanatory Notes to Chapter 7, HTSUS, state that the Chapter covers vegetables, whether fresh, chilled, frozen (uncooked or cooked by steaming or boiling in water), provisionally preserved or dried (including dehydrated, evaporated or freeze-dried), some of which have been dried and powdered. The type of vegetable packed in air-tight containers classified in Chapter 7 is described as a powder, a form of preparation permitted in the Chapter; however, the same note emphasizes that in most cases, products put up in such packings are prepared or preserved as provided for in the headings of Chapter 20. There is no indication that vegetables canned as the tomatoes are in this case are classified in Chapter 7.

If not otherwise defined in the tariff or indicated by legislative history, the correct meaning of a term in a tariff provision is the common meaning understood in trade or commerce. Steaming and boiling are recognized as usual processing in freezing foods. Interocean Chemical & Minerals Corp., v. United States, 13 CIT 449 (1989). Thus, the description "cooked by steaming or boiling in water" refers only to the freezing of vegetables, and has no application to the term "fresh", which is intended to be interpreted in the tariff in its usual meaning. In fact, Additional U.S. Note 1, Section IV, HTSUS, (which includes Chapters 16 through 24, covering prepared and processed foods, beverages and tobacco), states that the term "canned" as used in the Section means preserved in airtight containers by heat processing to destroy or inactivate micro-organisms and enzymes that otherwise could cause spoilage. The processing described includes that undergone by the tomatoes in this case, and goes beyond that permitted in Chapter 7.

Customs considers the definitions of food processing found in the regulations of the Food & Drug Administration (FDA), as well as the Department of Agriculture, and it is interesting to note that in describing fresh tomatoes in 7 CFR 51.19, no mention is made of the processing such as is undergone here; however, in 21 CFR 190, the description of canned tomatoes is very similar: "...sealed in a container and before or after sealing is so processed by heat as to prevent spoilage." Thus, there is no - 3 -
basis either under the tariff definition or industry standards for considering these canned tomatoes of a type of preparation classifiable in Chapter 7.

Peeling the tomatoes in and of itself does not preclude classification in Chapter 7, nor does the presence of "their own juices."


Tomatoes canned in the manner described are classifiable in subheading 2002.10.0050, HTSUS, and as a product of Italy subject to a duty rate of 100 percent under subeading 9903.23.17, HTSUS.

NYRL 878307 is affirmed.


John Durant, Director

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