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HQ 957550




May 23, 1995

CLA-2 R:C:F 957550

CATEGORY: CLASSIFICATION

TARIFF NO.: 1604.14.10

Mr. Matthew Chang
Assistant Vice President
Itochu International Trading
335 Madison Ave.
New York, New York 10017

RE: Reconsideration of New York Ruling Letter (NYRL) 803992; Tuna Fish

Dear Sir:

In your letter received on January 20, 1995, you requested that we reconsider NYRL 803992, dated December 2, 1994, which held that certain tuna fish products were classified in subheading 1604.14.10, Harmonized Tariff Schedule of the United States (HTSUS), dutiable at the general rate (1995) of 35 percent ad valorem. You expressed an opinion that the products are classified in subheading 1604.20.60, HTSUS (1995), dutiable at the general rate of 4.8 percent ad valorem. Our response follows.

FACTS:

The products are described as Panaeng tuna and Kaeng Khiaw Waan tuna imported in airtight containers, not frozen. Both products contain various amounts of chunks of tuna meat (skipjack), curry paste mixed with chili and spices, salt, sugar, coconut cream, modified tapicoa starch, vegetable oil, and water. In addition, the Panaeng tuna contains kaffir lime leaf, and the Kaeng Khiaw Waan tuna contains sweet basil leaf and baby egg plant. The chunks of tuna and the ingredients are cooked and packaged in air tight containers, 6.5 ounce cans. Samples were not submitted.

ISSUE:

The issue concerns the proper classification of tuna fish imported in airtight containers.

LAW AND ANALYSIS:

The classification of imported merchandise under the HTSUS is governed by the principles set forth in the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section and chapter notes and, unless otherwise required, according to the remaining GRI, taken in their appropriate order. Accordingly, we first have to determine whether the articles are classified under GRI 1. If it is determined that the classification of merchandise is governed by GRI 1, there is no need to consider the GRI that follow.

Subheading 1604.14.10, HTSUS, provides for prepared or preserved fish..., fish, whole or in pieces, but not minced, tunas, skipjack and bonito (Sarda, spp.), in airtight containers, in oil. The merchandise consists of prepared tuna fish of the skipjack class, in chunks, not minced, in airtight containers, and in oil. The merchandise is specifically provided for in Subheading 1604.14.10, HTSUS. The addition of oil and spices does not remove the product from the subheading.

A letter dated December 1, 1994, from the Food and Drug Administration is cited to support the position that the merchandise, as imported, does not meet the standard of identity for "canned tuna", and therefore, cannot be classified in subheading 1604.14.10, HTSUS. Page 1, second paragraph of the letter, states as follows;

You asked for confirmation that these tuna products, "Kaeng tuna" and Panaeng Tuna," would not come under the Standard of Identity for canned tuna. In our opinion, the consumer would not confuse these products with the standardized food. They neither purport to be nor are represented as the standardized food. The label clearly shows the food as tuna in a sauce.

Although the Customs Service may consider the rules and regulations of other government agencies in assisting the Customs Service in determining classification decisions under the HTSUS, the Customs Service is not bound by such rules and regulations in making classification decisions under the HTSUS. Apparently, some ingredients in your products disqualifies the products from being labelled "canned tuna" under the standard of identity for canned tuna. The standard of identity is intended to assist the consumer in the purchase of merchandise. The Food and Drug Administration letter noted that the products were labelled clearly showing that the food was tuna (fish) in a sauce and would not confuse the consumer. The food consists of tuna fish notwithstanding the added ingredients used in the preparation of the food.

HOLDING:

The products as described above, that contain various chunks of cooked tuna meat, curry paste mixed with chili and spices, salt, sugar, coconut cream, modified tapicoa starch, vegetable oil, and water and packaged in airtight containers, 6.5 ounce cans, are classified in subheading 1604.14.10, HTSUS, as prepared fish..., fish, whole or in pieces, but not minced, tunas, skipjack and bonito (Sarda, spp.), in airtight containers, and in oil, with duty at the general rate (1995) of 35 percent ad valorem.

NYRL 803992, dated December 2, 1994, is affirmed.

Sincerely,

John Durant, Director

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