CLA-2 OT:RR:CTF:TCM H025871 CkG
Port Director
U.S. Customs and Border Protection
Port of Los Angeles/Long Beach
301 E. Ocean Blvd. Suite 1400 Long Beach, CA 90802
RE: Application for Further Review of Protest No. 2704-07-101928;
classification of tuna in airtight containers
Dear Port Director:
This is in response to the Application for Further Review of Protest No. 2704-07-101928 filed on behalf of Bumble Bee Foods, LLC. (‘Protestant”), contesting Customs and Border Protection’s (CBP) classification and liquidation of tuna imported in plastic bags in subheading 1604.14.30, HTSUS, as tuna imported in airtight containers.
The subject merchandise was entered on July 26, 2006 at the Port of Los Angeles. CBP liquidated the entries on February 16, 2007, in subheading 1604.14.30, HTSUS. Protestant claims classification in subheading 1604.14.40, HTSUS, as tuna imported in non-airtight containers.
FACTS:
The subject merchandise consists of one entry of pre-cooked and frozen tuna loins vacuum-packed in heat-sealed Cryovac BB5 Barrier Bags. The contents of the bags measure approximately 67cm in length and 13cm in diameter. The bag dimensions are approximately 22.5cm x 92cm x 60µm. The bags are constructed of multiple layers of olefin plastic and PVDC copolymer. A sample of tuna-packed bags was tested by the CBP laboratory in Los Angeles to determine whether the container was airtight (Lab report # LA20061531, dated 9/28/06). The CBP lab was unable to test the bags using the standard method, the ASTM D 3078-02 “Standard Test Method for Determination of Leaks in Flexible Packaging by Bubble Emission,” due to the size of the containers and the fact that they were vacuum-packed, leaving little to no air around the tuna inside the bag. Lacking the necessary equipment to apply the ASTM method, the lab developed a new “bubble test” to determine the degree of oxygen leakage from the bag. The “bubble test” consists of the following steps:
A small area of the sample bag, at the sealed end, was lightly abraded with fine sand paper to create a bondable surface. A septum was also abraded on one side. A hole was pre made in the septum. A small hole was made in the sample bag within the abraded area. The septum was then glued to the bag in the prepared area over the hold. A needle was then inserted through the septum and the bag. The bag was then inflated until firm. The needle was removed and the hole in the septum was pinched closed with the thumb and index finger to prevent any air leaking out. The sample was then placed in a tank of water and completely submerged. The bag was then squeezed with firm pressure to see if any air escaped from the sample. No bubbles or air leaks were seen, indicating that no air escaped from the bag. Therefore, the bag was deemed airtight. The sample was partly thawed when tested (i.e., the surface was soft to the touch).
ISSUE:
Whether the instant merchandise is classified in subheading 1604.14.30, HTSUS, as tuna imported in airtight containers, or in subheading 1604.14.40, HTSUS, as tuna imported in non-airtight containers.
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 2704-07-101928 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with prior CBP rulings with respect to the same or substantially similar merchandise, specifically NY I80655, dated April 17, 2005 and HQ 078809, dated November 18, 1986.
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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.
The HTSUS provisions under consideration are as follows:
1604: Prepared or preserved fish; caviar and caviar substitutes prepared from fish eggs:
Fish, whole or in pieces, but not minced
1604.14: Tunas, skipjack and bonito (Sarda spp.):
Tunas and skipjack:
In airtight containers:
Not in oil:
1604.14.30: Other . . .
Not in airtight containers:
1604.14.40: In bulk or in immediate containers
weighing with their contents over 6.8
kg each, not in oil . . . . .
* * * * *
The Protestant disputes the finding of the CBP laboratory, in particular the method used to test the sample. The Protestant asserts that the material of the Cryovac BB5 Barrier Bags is permeable to air, and therefore the bags are not “airtight” pursuant to the definition set out in the 1931 T.D. 44941 guidelines as well as prior CBP rulings.
"It is well settled that the methods of weighing, measuring, and testing merchandise used by [CBP] officers and the results obtained are presumed to be correct." Aluminum Company of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398 (1973). Absent a conclusive showing that the testing method used by the CBP laboratory is in error, or that the CBP's laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (1978). There are two means in which an importer may successfully overcome the presumption of correctness afforded a CBP laboratory report. The first way is to successfully prove that the testing methods chosen to test the subject material were improper. See Libas, Ltd. V. United States, 193 F.3d 1361 (Fed. Cir. 1999). A second method is to prove that the CBP laboratory incorrectly carried out the properly chosen scientific procedure. See American Sporting Goods v. United States, 259 F. Supp. 2d 1302, 1308-1309 (Ct. Int’l Trade 2003) where the court found that the importer successfully overcame the presumption of correctness when the importer raised questions on the precision of CBP’s tests; CBP was unable to point to any significant flaws in the importer’s test; and CBP’s laboratory reports indicated that the case was a close call.
Applying these factors to the present protest, the protestant asserts that the standards and method used by the CBP Los Angeles laboratory to determine the degree of impermeability to air of the instant bags were improper. The protestant contends that the bags must be nearly or completely impermeable to air in order to meet the definition of airtight provided in CBP rulings and T.D. 44941 (June 4, 1931). The protestant further asserts that technical specifications and industry tests of the bag confirm that it has an oxygen permeability rating of 10-30 cc/m2/24 hrs. @ 23 degrees Celsius, and is therefore not impermeable to air.
The protestant further cites to prior CBP rulings and regulations holding that for a bag to be considered airtight, it must be “impermeable to the passage of air.” See T.D. 44941 (June 4, 1931), and NY I80655, dated April 17, 2005, and that CBP must examine the nature of the bag material (type of material and thickness) in addition to the type of seal used to close the bag. See HQ 078809, dated November 18, 1986. The CBP New York Laboratory has similarly stated (in reference to metallicized film fruit bar wrappers at issue in NY N023030, dated May 16, 2008) that “Airtight relates to permeability of air. Air-tight containers are hermetically sealed containers designed and intended to be used to secure against the entry of microorganisms in order to maintain the commercial sterility as well as to prevent the permeation of oxygen, air to preserve the freshness and the shelf life of products. Air-tight depends on type of packing materials (air permeation coefficient), the thickness of film, the flow of gases (the pressure difference), temperature, humidity, and the duration, the type of products (migration, diffusion onto plastic film).” CBP Laboratory Report NY2008-0206.
The protestant identifies two test methods which are commonly used to measure the oxygen permeability of plastic containers; the ASTM D-3985, which tests for oxygen transmission rate through a sample of plastic film using a coulometric sensor, and the ASTM F-1307, which tests for the oxygen transmission rate of a dry, closed package using a coulometric sensor. The CBP labs currently lack the proper equipment to perform either test; hence, the bubble test was devised to test for leaks in the seal or package material. The bubble test is based on the ASTM 3078 standard test method for determination of leaks in flexible packaging by bubble emission. The protestant’s technical submissions, however, indicate that neither test is sufficiently precise to measure oxygen permeability, and may even fail to detect small leaks; the explanation of the ASTM 3078 standard provided by ASTM International notes that “even small leaks might not be detected” when “viscoelastic effects on the products, or entrapped air, become significant and prevent passage through small openings. Positive pressure inside the pouch after the vacuum is drawn may force the product to plug small leaks. The size of the leak that can be detected is dependent upon the products contained, the nature of the packaging material, and the test parameters selected.”
Despite the existence of alternative test methods capable of measuring oxygen permeability, there is no uniform or codified standard interpreting “airtight” or “impermeable to air” for the purposes of subheading 1604.14, HTSUS. Protestant notes that Japan has adopted a standard of 1.1 cc/m2/24 hrs. @ 23 degrees Celsius, while Canada defines an “airtight container” as one in which “no detectable quantity of gases normally found in air…can pass into or out of the container.” We are not convinced that an oxygen permeability rating of zero or nearly zero is the standard that should be applied, or even that the instant bags, in their condition as imported, would not meet that standard.
We cannot rely exclusively on the protestant’s claimed oxygen permeability rating of 10-30 cc/m2/24 hrs. In this case, the protestant has submitted a laboratory report from Mocon laboratory on the instant merchandise which found the oxygen permeability rating of the instant Cryovac bags to range between 8.4 and 12 cc/m2/24hrs. This result is significantly lower than the stated specifications of the subject bags. The Allied development report further notes that PVCD, the material from which the instant bags are constructed, has an oxygen transmission rate of 2.3 cc/m2/24hrs @ 23 degrees Celsius. Id at 5. We further note that the complete definition of airtight containers provided by the T.D. actually states “all containers which are in fact impermeable to air at time of importation.”
As imported, the bags were vacuum-sealed around their (pre-cooked) contents and frozen. Testing conditions such as temperature and relative humidity can greatly affect the permeability of a given material, as noted in the report submitted by the protestant from its expert consultant, Allied Development. See Allied Development, Expert Consulting Report, page 14. The protestant has not submitted any test results with regard to the merchandise before us at the time of importation—i.e., Cryovac BB5 Barrier Bags heat sealed and vacuum packed around their pre-cooked and frozen contents. Rather, protestant estimates that the permeability of the subject bags in their condition as imported could range from .5 to 9.0 cc/m2/24hrs @ 23 degrees Celsius. Even though the interpretation of tariff terms by other sovereign governments is not binding on the U.S., by protestant’s own admission, the subject bags may have had a permeability level roughly half of the 1.1 cc/m2/24 hrs permitted by Japan for airtight containers.
However, whereas we agree that containers classified under this provision should have a low oxygen permeability rating or pass a gas permeability test such as the ASTM D 1434-82, “Determining Gas Permeability characteristics of plastic film and sheeting”, which has been used by CBP laboratories on smaller containers, we find that the testing method utilized by the CBP laboratory did not fully determine the oxygen permeability of the subject containers. We therefore find that protestant has successfully overcome the presumption of correctness afforded the CBP laboratory report.
HOLDING:
The precooked, frozen tuna loins imported in Cryovac BB5 Barrier Bags are classified in heading 1604, HTSUS, specifically subheading 1604.14.40, HTSUS, which provides for “Prepared or preserved fish; caviar and caviar substitutes prepared from fish eggs: Fish, whole or in pieces, but not minced: Tunas, skipjack and bonito (Sarda spp.): Tunas and skipjack: Not in airtight containers: In bulk or in immediate containers
weighing with their contents over 6.8 kg each, not in oil. The 2007 general, column one rate of duty is 1.1¢/kg.
Since reclassification will result in a lower duty rate, you are instructed to allow the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division