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NY 859547


January 16, 1991

CLA-2-16:S:N:N1:229

CATEGORY: CLASSIFICATION

TARIFF NO.: 1604.14.1000

Mr. Sidney Kahan, Technical Director
Camerican Co., Inc.
480 Alfred Avenue
Teaneck, NJ 07666

RE: The tariff classification of two canned TUNA products from Japan, Taiwan, and Thailand.

Dear Mr. Kahan:

In your letter dated January 10, 1991, you requested a tariff classification ruling.

The two products in question are described as, first, TUNA packed in water with the addition of 5 percent by weight of oil and, secondly, TUNA packed with vegetables in a spice sauce containing oil. The second product would be formulated according to indigenous Thai recipes and consist of about 30 percent by weight of tuna packed with vegetables, such as corn and kidney beans, in a spiced sauce containing up to 13 percent by weight of oil. You note in your letter that the Food and Drug Administration has recently amended the standard of identity for water pack canned tuna to permit the addition of 5 percent oil as an optional ingredient for enhancing flavor and state that, in your opinion, a small amount of oil added to canned tuna for flavoring should be considered just like any other spice or seasoning. We would disagree.

Additional U.S. Legal Note 1 in Chapter 16, Harmonized Tariff Schedule of the United States (HTS), defines the term "in oil", for purposes of this chapter, as meaning "packed in oil or fat, or in added oil or fat and other substances, whether such oil or fat was introduced at the time of packing or prior thereto." Further, in a letter dated November 25, 1988, (File number HQ 081289), Headquarters has previously ruled that canned tuna in water with not over 5 percent added oil is classifiable under the provision for tuna, "in oil", in subheading 1604.14.1000, HTS. In reaching this classification, Headquarters noted that "(t)he issue of added oil was clearly answered by the court in Strohmeyer Arpe Co. v. United States, 5 CCA 527 (1915), in which it was stated that the amount of oil in a fish pack was not determinative as to whether the fish is 'in oil', since the purpose of the statute in question was to provide greater duty in the case of fish packed in oil alone or in oil with other substances used in the preparation of fish in packing. In that case the oil amounts to a little over 5 percent. Since the oil in this case is added for a purpose, to affect the taste, it serves a function and would not be considered de minimis for tariff purposes." Finally, as noted in the cited Headquarters ruling, while Customs may consider the rules and regulations of other agencies, such as those of the Food and Drug Administration, it is not bound by them.

Accordingly, the applicable subheading for canned TUNA in water with up to 5 percent added oil and canned TUNA with vegetables in a spicy sauce, containing up to 13 percent added oil, will be 1604.14.1000, Harmonized Tariff Schedule of the United States (HTS), which provides for prepared or preserved Tunas and skipjack:...In airtight containers:...In oil. The rate of duty will be 35 percent ad valorem.

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

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

Jean F. Maguire
Area Director

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