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HQ 967949





October 31, 2005

CLA-2:RR:CTF:TCM 967949 IOR

CATEGORY: CLASSIFICATION

Tariff No.: 1604.14.1099, 1604.14.2299, 1604.14.3099

Ole Skaaning
Ken Hamanaka Co, Inc.
Crosswinds International Inc.
5777 West Century Blvd.
Suite 760
Los Angeles, CA 90045

RE: Canned flavored tuna

Dear Mr. Skaaning:

This is in response to your request of June 27, 2005, to the National Commodity Specialist Division (NCSD) New York, for a binding ruling on the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of flavored tuna products, on behalf of Mr. Richard Fowler. Your ruling request was referred to this office by the NCSD for reply. We regret the delay in responding.

FACTS:

The subject merchandise consists of eight varieties of imported tuna.

Tuna with lime, chili and mint contains skipjack flakes (59.46%), soy oil (2.70%), water (28.06%), and spices, preservatives, flavorants and extracts.

Tuna with ginger and light soy contains skipjack flakes (59.40%), soy oil (0.79%), water (26.73%), and spices, preservatives, flavorants and extracts.

Tuna with lemon grass, lime and ginger contains skipjack flakes (59.39%), water (31.66%), and spices, preservatives, flavorants and extracts.

Tuna with spicy tomato contains skipjack flakes (52.43%), olive oil (1.08%), water (28.03%), and spices, preservatives, a colorant, flavorants and extracts.

Tuna with garlic and black pepper contains, skipjack flakes (58.91%), oil (1.08%), water (28.22%), and spices, preservatives, flavorants and extracts.

Tuna and zesty vinaigrette contains skipjack flakes (59.46%), soy oil (5.41%), water (24.97%), and spices, preservatives, flavorants and extracts.

Tuna with chili and oven-dried capsicum contains skipjack flakes (57.27%), soy oil (5.38%), paprika oil (0.03%), water (25.65%), and spices, preservatives, flavorants and extracts.

Yellowfin flakes in soy sauce “Aji-Tsuke” contains yellowfin flakes (62.14%), water (16.01%), spices and flavorants.

The tuna will be packed in 6 oz. cans.

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 provisions 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.

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 “in oil.”

The percentage of oil in the six tuna varieties containing oil (tuna with lime, chili and mint, tuna with ginger and light soy, tuna with spicy tomato, tuna with garlic and black pepper, tuna and zesty vinaigrette and tuna with chili and oven-dried capsicum), which are the subject of this ruling, is less than the quantity of oil 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 six varieties of the subject tuna which contain oil, 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 tuna with lime, chili and mint, tuna with ginger and light soy, tuna with spicy tomato, tuna with garlic and black pepper, tuna and zesty vinaigrette and tuna with chili and oven-dried capsicum 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 tuna with lime, chili and mint, tuna with ginger and light soy, tuna with spicy tomato, tuna with garlic and black pepper, tuna and zesty vinaigrette and tuna with chili and oven-dried capsicum tuna products 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. No evidence or claim has been presented in this case that the tuna which is the subject of this ruling request is not packaged in a sauce, and would not fall within the definition of “in oil” as set forth in the decision in Strohmeyer.

The tuna with lemon grass, lime and ginger, and the yellowfin flakes in soy sauce “Aji-Tsuke” products do not contain any added oil. The tuna with lemon grass, lime and ginger, and the yellowfin flakes in soy sauce “Aji-Tsuke,” products, if entered within the tariff rate quota period, are 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 tuna with lemon grass, lime and ginger, and the yellowfin flakes in soy sauce “Aji-Tsuke” products 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 tuna with lime, chili and mint, tuna with ginger and light soy, tuna with spicy tomato, tuna with garlic and black pepper, tuna and zesty vinaigrette and tuna with chili and oven-dried capsicum tuna products are classified in subheading 1604.14.1099, 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: Other: Other,” with a column one, general duty rate of 35% ad valorem.

By application of GRIs 1 and 6, the tuna with lemon grass, lime and ginger, and the yellowfin flakes in soy sauce “Aji-Tsuke” products are classified in subheading 1604.14.2299, 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: Other,” 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 tuna with lemon grass, lime and ginger, and the yellowfin flakes in soy sauce “Aji-Tsuke” products are classified in subheading 1604.14.3099, 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: Other,” 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/tata/hts/.

Sincerely,

Gail A. Hamill, Chief

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