HQ 951919: Decision on Application for Further Review of Protest No. 3004-92-100032, on the classification of dried tomatoes in olive oil

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 951919
                             Oct 1,1992
CLA-2  CO:R:C:F 951919  JGH

CATEGORY: CLASSIFICATION

TARIFF NO.:  2002.10.00 9903.23.17

Port Director of Customs
9901 Pacific Highway
Blaine, Washington  98230

RE:  Decision on Application for Further Review of Protest No.
     3004-92-100032, on the classification of dried tomatoes in
     olive oil

Dear Sir:

     This protest involves the classification of dried tomatoes
in olive oil from Italy under the Harmonized Tariff Schedule of
the United States (HTSUS).

FACTS:

     Renna brand Dried Tomatoes in Olive Oil is said to be packed
in 11-ounce glass jars, consisting of 7.4 ounces of olive oil,
3.7 ounces of dried tomatoes, with fennel, laurel and salt.

ISSUE:

     Whether dried tomatoes in olive oil are classifiable as
prepared or preserved tomatoes in subheading 2002.10.00, HTSUS, a
sauce in 2103.90.60, HTSUS, or a food preparation, not elsewhere
specified or included, in subheading 2106.90.60, HTSUS.

LAW AND ANALYSIS:     

     It is claimed that the product has a variety of uses,
including that as a sauce for pasta and other Italian dishes;
that since the olive oil predominates by weight and value, when
combined with the tomatoes, the product is a sauce.

     The Explanatory Notes to the HTSUS provide an interpretation
of the tariff provisions at the international level.  For heading
2103 the Notes define sauces a preparations, generally of a - 2 -

highly spiced character, used to flavor certain dishes.  It goes
on to state that they are generally in liquid form and made from 
various ingredients (eggs, vegetables, meat, fruit, flours,
starches, oil, vinegar, sugar, spices mustard, flavorings, etc.).

     However, while dried tomatoes in olive oil may occasionally
be a ingredient in sauce, the product, in and of itself, is not a
sauce.  In fact, as ingredients dried tomatoes have a variety of
uses: in soups, salads, stew, pizzas, appetizers or hors
d'oeuvres.  The Explanatory Notes also state that sauces are
mainly liquids, emulsions, or suspensions containing very little
solid matter.  In contrast, the product here consists of pieces
of tomato in olive oil.

     An alternative claim is that GRI 1, in which classification
is determined according to the tariff headings and related
section notes, is inappropriate and that classification should be
according to the essential character of the product under GRI 3.
It is asserted that since the dried tomatoes are the essential
ingredient, the product is classifiable as dried tomatoes in
subheading 0712.90.75, HTSUS.  However, that provision is limited
to tomatoes which are dried but not further prepared.  Here, the
tomatoes have been further prepared by immersion in olive oil,
and flavored with fennel, laurel and salt.  Therefore, heading
0712 does not apply. 

      The "essential character" argument is believed to be
supported by several cited precedents: 081607 involving a mixture
of sugar and corn, and 083145 involving a mixture of milk fat and
skim milk powder.  However, those cases are distinguishable as
they involved fungible mixtures; the merchandise here is pieces
of dried tomatoes prepared and preserved in olive oil; clearly a
product which is not considered a mixture for tariff purposes. 
The fact that the olive oil weighs more than the tomatoes is of
no significance, since it is the form of the tomato which is
being merchandised here, not the olive oil.  Since the tomato is
prepared or preserved in a manner other than that specified in
Chapter 7, HTSUS, the tariff provisions of Chapter 20, HTSUS,
would apply.  Heading 2002 provides for tomatoes prepared or
preserved otherwise than by vinegar or acetic acid, and these are
dried tomatoes prepared or preserved in olive oil.

      Dried tomatoes in olive oil are classifiable in subheading
2002.10.00, HTSUS, and subject to the quota in subheading
9903.23.17, HTSUS.            - 3 -
HOLDING:

     The protest should be denied in full.

     A copy of this decision should be attached to the Customs
Form 19 and provided to the protestant as part of the notice of
action.
                              Sincerely,




                              John Durant, Director