CLA-2 R:C:F 957550
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.
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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.
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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
Commercial Rulings Division