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HQ 967515





March 21, 2005

CLA-2:RR:CR:GC 967515 IOR

CATEGORY: CLASSIFICATION

Tariff No.: 1604.14.1010, 1604.14.2291, 1604.14.3091

William Outman, II, Esq.
Stuart P. Seidel, Esq.
Baker & McKenzie LLP
815 Connecticut Avenue, NW
Washington DC 20006-4078

RE: Flavored tuna in a pouch

Dear Messrs. Outman and Seidel:

This is in response to your ruling request of November 2, 2004, to the National Commodity Specialist Division (NCSD) New York, requesting a binding ruling on the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of flavored tuna products, on behalf of Del Monte Foods. Your ruling request was referred to this office by the NCSD for reply. Samples of the product were submitted to the NCSD and to this office. Our decision follows a February 23, 2005 teleconference between members of my staff, you and your client. You have also submitted additional arguments in support of your position by way of a copy of the February 25, 2002 submission made with respect to New York Ruling H88884, dated March 26, 2002. By your letter of February 11, 2005, and four attachments thereto, you have indicated the information you request be treated as confidential. We have granted your request that the formulary percentages of the ingredients in the tuna products, and the names of certain ingredients not otherwise disclosed to the public be treated as confidential.

FACTS:

The subject merchandise consists of four varieties of imported tuna. The different varieties are Teriyaki B, Lemon Pepper YF Strips, Plain A and Mesquite MZ-2A. The tuna is fully cooked, ready to eat, in retail size, airtight foil pouches. You provided us with samples of the Lemon Pepper YF Strips and the Mesquite MZ-2A, and provided the NCSD with samples of all four varieties.

The Teriyaki B variety consists of large tuna chunks in a thin, brown sauce. Ingredients in addition to tuna are soy sauce, distilled white vinegar, sugar, water and teriyaki flavorant.

The Lemon Pepper YF Strips variety consists of large chunks (up to two and three inches in length, and one inch in width) and smaller pieces, of tuna, packed in a viscous yellowish sauce. Ingredients in addition to tuna are water, sunflower oil, distilled white vinegar, flavorants, sugar, salt, citric acid, guar gum, cracked pepper, lemon pepper seasoning and lemon flavor.

The Plain A variety consists of small pieces of tuna in a sauce. Ingredients in addition to tuna are water, sunflower oil, fresh garlic, salt, xantham gum, broth, and parsley.

The Mesquite MZ-2A variety consists of large chunks of tuna (three inches in length, and one inch in width), in a viscous sauce. Ingredients in addition to tuna are water, mesquite flavorant, xantham gum, caramel color, and sunflower oil.

In the Lemon Pepper YF Strips, Plain A, and Mesquite MZ-2A varieties, the percentage of oil added is minimal. You assert that the oil is used as a carrier for the flavoring in which the tuna is marinated, as opposed to use as a packing medium. With regard to these varieties, the amount of sauce evident in the package appears to be about one teaspoonful.

You request that the tuna preparations be classified in subheadings 1604.14.22 or 1604.14.30, HTSUS, depending on the time of year of the importation, as tuna, in airtight containers, not in oil.

ISSUE:

What is the classification of the tuna?

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, 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. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs 1 through 5.

The HTSUS subheadings under consideration are as follows:

1604 Prepared or preserved fish;:
Fish, whole or in pieces, but not minced: 1604.14 Tunas, skipjack and bonito (Sarda spp): Tunas and skipjack:
In airtight containers:
In oil.
Not in oil:
In containers weighing with their contents not over 7 kg each, and not the product of any insular possession of the United States, for an aggregate quantity entered in any calendar year not to exceed 4.8 percent of apparent United States consumption of tuna in airtight containers during the immediately preceding year, as reported by the National Marine Fisheries Service

Other..

Additional U.S. Note 1, to Chapter 16, HTSUS, states that for the purposes of Chapter 16, “the term ’in oil’ means 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.”

Whether fish are considered “packed in oil” was considered by the United States Court of Customs Appeals in Strohmeyer & Arpe Co. v. United States, 5 Cust. Ct. 527 (1915). In Strohmeyer, the applicable tariff provision, paragraph 216 of the act of 1913 provided as follows:

Fish, except shellfish, by whatever name known, packed in oil or in oil and other substances, in bottles, jars, kegs, tin boxes, or cans, 25 per centum ad valorem; all other fish, except shellfish, in tin packages, not specially provided for in this section, 15 per centum ad valorem;..

In Strohmeyer, the fish was prepared by boiling in oil, after which the oil was allowed to drain off. Subsequently tomato sauce was added and the fish with tomato sauce was placed in tin cans and sealed. The court found that the sauce contained 5.7% oil. In that case, the importer contended that the fish was not packed in oil and other substances within the meaning of the first clause of paragraph 216 of the act of 1913. The court affirmed the holding of the Board of United States General Appraisers, below, that:

[I]t is immaterial how the vegetable oil became present in the tins; that if, as a matter of fact, the substance in which the fish were found in the tins as packed consisted of oil and other substances, this is sufficient to bring it within the first provision of the paragraph.

The court stated that the additional duty provision was not aimed at the method of application of the oil, but was intended “to reach any case in which oil is part of the substance in which the fish is found packed when offered for importation.” The current definition of “in oil” is taken from the previous tariff law, the Tariff Schedules of the United States (TSUS), in which the definition was based on the decision in Strohmeyer. See HQ 083948, dated June 5, 1989.

In your February 25, 2002 submission you assert, with no authority, that in Strohmeyer, “the fish boiled in oil had been saturated with a far higher oil content than any fish product merely packed or preserved in oil.” The court was not concerned about the oil content in the fish, but made its decision based on the oil content of the substance in which the fish was found as packed. We do not find Strohmeyer distinguishable from the instant case. You also assert that there is a distinction between fish packed “with” or “containing” oil, and fish packed “in” oil. Based on the decision in Strohmeyer, it is not relevant whether the oil is added solely for packing purposes or added for flavoring purposes. The presence of oil in the medium in which the fish is found packed, is sufficient to describe the fish as “packed in oil.”

The percentage of oil in the Lemon Pepper YF Strips, Plain A, and Mesquite MZ-2A varieties is less than the quantity found in Strohmeyer. However, based on the principle set forth in Strohmeyer, that the term “packed in oil or oil and other substances” was to include any case in which oil is part of the substance in which the fish is found packed, only the presence of oil is determinative of the applicable tariff, and not the quantity of oil. In the case of the Lemon Pepper YF Strips, Plain A, and Mesquite MZ-2A varieties, oil is present in the substance in which the tuna is packed. In addition, this office has previously determined that canned tuna in water, with not over 5% added oil , is classifiable under the provision of tuna, “in oil.” HQ 081289, dated November 25, 1988.

The Lemon Pepper YF Strips, Plain A, and Mesquite MZ-2A tuna varieties are classified in subheading 1604.14.10, HTSUS, which provides for “[p]repared or preserved fish;: Fish, whole or in pieces, but not minced: Tunas, skipjack and bonito: Tunas and skipjack: In airtight containers: In oil.”

The Lemon Pepper YF Strips, Plain A, and Mesquite MZ-2A tuna varieties are distinct from the tuna which was the subject of NY H88884, dated March 26, 2002. In NY H88884, three of the four different tuna varieties contained two to five percent oil, and they were classified in subheading 1604.14.20, HTSUS, the provision for tuna, in airtight containers, not in oil. In that case, the tuna consisted only of pieces of marinated tuna, which, while moist, were not packaged in any apparent sauce. Therefore, the tuna which was the subject of NY H88884, did not fall within the definition of “in oil” as set forth in the Strohmeyer decision. The tuna which is the subject of this ruling request is packaged in a sauce, and therefore does fall within the definition of “in oil” as set forth in the decision in Strohmeyer.

You assert that the Food and Drug Administration (FDA) Standards of Identity for Canned Tuna, in 21 C.F.R. §161, which set forth requirements regarding the packing medium of canned tuna and the seasoning or flavoring of canned tuna, support your position that tuna flavored with oil is distinguishable from tuna packed in oil. However, “it is well established that statutes, regulations and administrative interpretations relating to ‘other than tariff purposes’ are not determinative of Customs classification disputes.” Amersham Corp. v. United States, 5 CIT 49, 56 (1983). See also Bestfoods v. United States, 342 F.Supp. 2d 1312 (Ct. Int’l Trade 2004). Articles are classified by the FDA to protect public safety, not as guidance to Customs and Border Protection (CBP) classification. HQ 085064, dated August 24, 1990. While CBP may consider the rules and regulations of other agencies, such as those of the FDA, it is not bound by them. See HQ 081289, supra.

The Teriyaki B tuna is imported in a sauce which does not contain any oil. The Teriyaki B tuna variety, if entered within the tariff rate quota period, is classified in subheading 1604.14.22, HTSUS, which provides for “[p]repared or preserved fish;: Fish, whole or in pieces, but not minced: Tunas, skipjack and bonito: Tunas and skipjack: In airtight containers: Not in oil: In containers weighing with their contents not over 7 kg each, and not the product of any insular possession of the United States, for an aggregate quantity entered in any calendar year not to exceed 4.8 percent of apparent United States consumption of tuna in airtight containers during the immediately preceding year, as reported by the National Marine Fisheries Service.” If entered after the tariff rate quota has been filled, the Teriyaki B tuna will be classified in subheading 1604.14.30, HTSUS, which provides for “[p]repared or preserved fish;: Fish, whole or in pieces, but not minced: Tunas, skipjack and bonito: Tunas and skipjack: In airtight containers: Not in oil: Other.”

HOLDING:

By application of GRIs 1 and 6, the Lemon Pepper YF Strips, Plain A, and Mesquite MZ-2A tuna varieties are classified in subheading 1604.14.1010, HTSUSA, which provides for “[p]repared or preserved fish;: Fish, whole or in pieces, but not minced: Tunas, skipjack and bonito: Tunas and skipjack: In airtight containers: In oil: In foil or other flexible containers weighing with their contents not more than 6.8 kg each,” with a column one, general duty rate of 35% ad valorem.

By application of GRIs 1 and 6, the Teriyaki B tuna is classified in subheading 1604.14.2291, HTSUSA, which provides for “[p]repared or preserved fish;: Fish, whole or in pieces, but not minced: Tunas, skipjack and bonito: Tunas and skipjack: In airtight containers: Not in oil: In containers weighing with their contents not over 7 kg each, and not the product of any insular possession of the United States, for an aggregate quantity entered in any calendar year not to exceed 4.8 percent of apparent United States consumption of tuna in airtight containers during the immediately preceding year, as reported by the National Marine Fisheries ServiceOther: In foil or other flexible containers weighing with their contents not more than 6.8 kg each,” with a column one, general duty rate of 6% ad valorem, if entered within the tariff rate quota period. If entered after the tariff rate quota has been filled, by application of GRI 1, the Teriyaki B tuna is classified in subheading 1604.14.3091, HTSUSA, which provides for “[p]repared or preserved fish;: Fish, whole or in pieces, but not minced: Tunas, skipjack and bonito: Tunas and skipjack: In airtight containers: Not in oil: OtherOther: In foil or other flexible containers weighing with their contents not more than 6.8 kg each,” with a column one, general duty rate of 12.5% ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov.

Sincerely,

Myles B. Harmon, Director

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