088641
HQ 088641
May 2,1991
CLA-2 CO:R:C:F: 088641 JGH
Mr. Richard J. Sullivan
Association of Food Industries, Inc.
177 Main Street
P.O. Box 776
Matawan, N.J. 07747
RE: Classification of smoked sardines
Dear Mr. Sullivan:
Your letter of October 26, 1990, concerns the classification
of sardines to which a smoke flavor has been added, under the
Harmonized Tariff Schedules of the United
States (HTSUS).
FACTS:
It is your understanding that a smoke flavor may be
added to sardines not only by smoke from the burning of wood (the
traditional method), but also that smoke flavoring may
be added by using an artificial flavor, which is chemically
derived.
ISSUE:
Whether the origin of a smoke flavoring in a sardine should
affect the classification.
LAW & ANALYSIS:
Subheading 1604.13.1000, HTSUS, provides for:
Sardines, sardinella and bristling or sprats:
In oil, in airtight containers:
Smoked sardines, neither skinned nor
boned, valued $1.00 or more per kg in
tinplate containers, or $1.10 or more
in other containers....
The question is whether the term "smoked sardines" in the
provision is limited to the traditional meaning of the term.
-2-
Traditionally, smoking is a process in which meat or fish is
exposed in a smokehouse, or other enclosed area, to smoke
produced by slowly burning hardwood. The smoking may continue
for a period of hours or days, depending on the results desired.
Smoking is desired not only for the flavor imparted but also it
is a method of preserving meat or fish. Of course today, because
of refrigeration, smoking for preservation is no longer as widely
used as it once was. Mild smoking is more apt to be used now to
flavor and to impart a distinctive color to the product.
In addition to the traditional method of smoking, artificial
flavorings are widely used today in the United States. These
are categorized as 1) smoke condensates or 2) artificial smoke
flavors. This latter category is a totally synthetic product
made from chemicals, and not known to be used to impart a smoked
flavor to fish.
Smoke condensates, on the other hand, are produced by
capturing the actual smokes vapor in a water condensation
process. In this process, the water circulates in a closed
area, absorbing the smoke constituents until the desired
concentration of flavor is achieved. The aqueous smoke
condensates may then be further processed with other ingredients.
The evidence indicates that, aside from the traditional
method of smoking meat or fish, smoke condensates are the
only other products widely used for this purpose. Since the
condensate utilizes the characteristics of the smoke, and the
properties are not distinguishable from the natural smoke after
application to the product, the results are considered the same,
so that the condensates are essentially a form of traditional
smoking.
HOLDING:
Accordingly, canned smoked sardines in oil, whether prepared
in the traditional method or smoked by the addition of a smoked
condensate, are classifiable in subheading 1604.13.1000, HTSUS,
if within the value limitation of that subheading.
-3-
Canned smoked sardines in oil, whether prepared in the
traditional method or smoked by the addition of a smoke
condensate, which do not satisfy the value paramenter of
subheading 1604.13.1000, and are neither skinned nor boned, would
be classified in subheading 1604.13.2000, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division
6ccA.D., N.Y., Seaport
2cc CIE
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088641