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NY L86920

August 23, 2005

CLA-2-20:RR:NC:N2:228 L86920


TARIFF NO.: 2002.10.0020, 2002.10.0080

Mr. Herbert J. Lynch
Sullivan & Lynch, P.C.
56 Roland Street
Boston, MA 02129-1223

RE: The tariff classification of canned tomatoes from Italy

Dear Mr. Lynch:

In your letter dated July 29, 2005, on behalf of Agrusa Incorporated, Leonia, NJ, you requested a tariff classification ruling.

A sample and a copy of a product label were submitted with your letter. The sample was opened, examined, and disposed of. You describe the product as consisting of peeled tomatoes, tomato puree, basil, salt, and citric acid, put up in cans of 108 ounces and larger for food service customers, and in 28-ounce and 35-ounce cans for retail purchasers. The sample was an unlabelled can measuring approximately 4-1/2 inches tall and 4 inches in diameter, said to contain 28 ounces, net weight. Examination of the sample found whole peeled tomatoes, measuring from approximately two inches to three inches in length, in a thick, red, liquid medium. The sample did not contain basil leaf or basil leaf particles.

In your letter, citing Orlando Food Corp. v. United States, 21 CIT 187 (1997), aff’d 140 F.3rd 1437 (Fed. Cir. 1998), you suggested the product should be classified in subheading 2103.90.90, Harmonized Tariff Schedule of the United States (HTS), the provision for preparations for sauces. We cannot agree. The product represented by the sample you have provided differs in composition from the product before the Court.

The applicable subheading for this tomato product, when in cans holding 28 or 35 ounces, will be 2002.10.0020, HTS, which provides for tomatoes prepared or preserved otherwise than by vinegar or acetic acidtomatoes, whole or in piecesin containers holding less than 1.4 kg. When in containers holding 108 ounces or more, the applicable subheading will be 2002.10.0080, HTS, which provides for tomatoeswhole or in piecesother. In both cases, the rate of duty will be 12.5 percent ad valorem. However, the Harmonized Tariff Schedule of the United States has been modified by adding in numerical sequence the following superior text and subheading to subchapter III of chapter 99 to the HTS:

Articles the product of France, the Federal Republic of Germany, or Italy:

9903.02.39 Tomatoes prepared or preserved otherwise than by vinegar or acetic acid, whole or in pieces (provided for in subheading 2002.10)

Under this provision, the prepared tomatoes from Italy, classified under subheadings 2002.10.0020 and 2002.10.0080, HTS, is subject to a 100 percent ad valorem rate of duty.

This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at 301-575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Stanley Hopard at 646-733-3029.


Robert B. Swierupski

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