HQ 084066: Classification of dried, salted and steamed Tomatoes from Italy

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                      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















                                         -2-

          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
                                        Commercial Rulings Division