H340768

H340768 June 25, 2025 OT:RR:CTF:FTM HQ H340768 LPO CATEGORY: Classification TARIFF NO.: 2002.10.00 Center Director Agriculture and Prepared Products Center of Excellence and Expertise U.S. Customs and Border Protection 6601 NW 25th Street Miami, Florida 33122 Attn: Allison Clinton, Supervisory Import Specialist Re: Protest and Application for Further Review of Protest No. 4601-24-137284; Tariff Classification of Certain Canned Tomato Products Dear Center Director: This letter is in regards to the Application for Further Review (“AFR”) of Protest No. 4601-24-137284, timely filed on May 20, 2024, by Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP, on behalf of Mangia, Inc. (“Protestant”), concerning the tariff classification of whole peeled tomatoes in puree and crushed tomatoes in puree under the Harmonized Tariff Schedule of the United States (“HTSUS”). FACTS: Protestant describes the subject merchandise as whole peeled tomatoes in puree and crushed tomatoes in puree from Italy. The whole peeled tomatoes in puree are said to contain 65% tomatoes and 35% tomato puree. The crushed tomatoes in puree are said to be in a “heavy puree,” and no percentages were provided for the components. Protestant states that the subject merchandise is imported in drums for further processing into tomato sauces or other tomato- based products after importation and are manufactured and marketed for this purpose. The subject merchandise covers three entries entered between October 31, 2023, and November 21, 2023. At the time of entry, the subject tomato products were classified under subheading 2103.90.90, HTSUS, which provides for “Sauces and preparations therefore; mixed condiments and mixed seasonings; mustard flour and meal and prepared mustard: Other: Other.” The general rate of duty upon importation was 6.4% ad valorem. CBP rate advanced the tomato products under subheading 2002.10.00, HTSUS, which provides for “Tomatoes prepared or preserved otherwise than by vinegar or acetic acid… Tomatoes, whole or in pieces,” for which the 2023 column one general rate of duty is 12.5% ad valorem. The entries were liquidated on April 12, 2024 and Protestant filed the subject protest and AFR on May 20, 2024. ISSUE: What is the tariff classification of the subject whole peeled tomatoes in puree and crushed tomatoes in puree? LAW AND ANALYSIS: Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed within 180 days of liquidation of the first entry. See 19 U.S.C. § 1514(c)(3). Further Review of Protest No. 4601-24-137284 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts. Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The 2023 HTSUS provisions under consideration are as follows: 2002 Tomatoes prepared or preserved otherwise than by vinegar or acetic acid: 2002.10.00 Tomatoes, whole or in pieces 2103 Sauces and preparations therefore; mixed condiments and mixed seasonings; mustard flour and meal and prepared mustard: * * * 2103.90 Other: * * * 2 Other: * * * 2103.90.90 Other: * * * Additional U.S. Note 3 to Chapter 21, HTSUS, provides as follows: For the purposes of this chapter, the term “mixed condiments and mixed seasonings described in additional U.S. note 3 to this chapter” means articles containing over 10 percent by dry weight of sugars derived from sugar cane or sugar beets, whether or not mixed with other ingredients, except (a) articles not principally of crystalline structure or not in dry amorphous form that are prepared for marketing to the ultimate consumer in the identical form and package in which imported; or (b) cake decorations and similar products to be used in the same condition as imported without any further processing other than the direct application to individual pastries or confections, finely ground or masticated coconut meat or juice thereof mixed with those sugars, and sauces and preparations therefor. In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989). The EN to heading 20.02 provides, in pertinent part, that: This heading covers tomatoes, whether whole or in pieces, other than tomatoes prepared or preserved by vinegar or acetic acid (heading 20.01) and tomatoes presented in the states specified in Chapter 7… The heading also includes homogenised prepared or preserved tomatoes (e.g., tomato purée, paste or concentrate), however the heading excludes tomato ketchup and other tomato sauces (heading 21.03)[.] The EN to 21.03(A) provides, in pertinent part, that: (A) SAUCES AND PREPARATIONS THEREFOR; MIXED CONDIMENTS AND MIXED SEASONINGS This heading covers preparations, generally of a highly spiced character, used to flavour certain dishes (meat, fish, salads, etc.), and made from various ingredients 3 (eggs, vegetables, meat, fruit, flours, starches, oil, vinegar, sugar, spices, mustard, flavourings, etc.). Sauces are generally in liquid form and preparations for sauces are usually in the form of powders to which only milk, water, etc. need to be added to obtain a sauce. Sauces are normally added to a food as it cooks or as it is served. Sauces provide flavour, moisture, and a contrast in texture and colour. They may also serve as a medium in which food is contained, for example, the velouté sauce of creamed chicken. Seasoning liquids (soy sauce, hot pepper sauce, fish sauce) are used both as ingredients in cooking and at table as condiments. The heading also includes certain preparations, based on vegetables or fruit, which are mainly liquids, emulsions or suspensions, and sometimes contain visible pieces of vegetables or fruit. These preparations differ from prepared or preserved vegetables and fruit of Chapter 20 in that they are used as sauces, i.e., as an accompaniment to food or in the preparation of certain food dishes, but are not intended to be eaten by themselves. Mixed condiments and mixed seasonings containing spices differ from the spices and mixed spices of headings 09.04 to 09.10 in that they also contain one or more flavouring or seasoning substances of Chapters other than Chapter 9, in such proportions that the mixture has no longer the essential character of a spice within the meaning of Chapter 9 (see the General Explanatory Note to that Chapter). Examples of products covered by the heading are : mayonnaise, salad dressings, Béarnaise, bolognaise (consisting of chopped meat, tomato purée, spices, etc.), soya sauces, mushroom sauce, Worcester sauce (generally made with a base of thick soya sauce, an infusion of spices in vinegar, with added salt, sugar, caramel and mustard), tomato ketchup (a preparation made from tomato purée, sugar, vinegar, salt and spices) and other tomato sauces, celery salt (a mixture of cooking salt and finely ground celery seeds), certain mixed seasonings for sausage making, and products of Chapter 22 (other than those of heading 22.09) prepared for culinary purposes and thereby rendered unsuitable for consumption as bevera

Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed within 180 days of liquidation of the first entry. See 19 U.S.C. § 1514(c)(3). Further Review of Protest No. 4601-24-137284 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts. Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The 2023 HTSUS provisions under consideration are as follows: 2002 Tomatoes prepared or preserved otherwise than by vinegar or acetic acid: 2002.10.00 Tomatoes, whole or in pieces 2103 Sauces and preparations therefore; mixed condiments and mixed seasonings; mustard flour and meal and prepared mustard: * * * 2103.90 Other: * * * 2 

 Other: * * * 2103.90.90 Other: * * * Additional U.S. Note 3 to Chapter 21, HTSUS, provides as follows: For the purposes of this chapter, the term “mixed condiments and mixed seasonings described in additional U.S. note 3 to this chapter” means articles containing over 10 percent by dry weight of sugars derived from sugar cane or sugar beets, whether or not mixed with other ingredients, except (a) articles not principally of crystalline structure or not in dry amorphous form that are prepared for marketing to the ultimate consumer in the identical form and package in which imported; or (b) cake decorations and similar products to be us