CLA-2-16:OT:RR:NC:2:231
Mr. Paul Ryberg
Ryberg and Smith, L.L.C.
Canal Square
1054 Thirty-First Street, N.W.
Washington, DC 20007-4493
RE: The tariff classification and AGOA eligibility of canned and other prepared/preserved tuna from Mauritius.
Dear Mr. Ryberg:
In your letter dated June 4, 2010, you requested a tariff classification and AGOA-eligibility ruling on behalf of your clients, Thon des Mascareignes and its sister company Indico Canning, both located in Mauritius.
You have outlined a scenario in which tunas will be caught by fishing vessels based in and operating under the flag of Mauritius, the Seychelles, or any other qualified AGOA beneficiary country. (“AGOA” refers to the African Growth and Opportunity Act.) In Mauritius, the whole fish (in chilled or frozen condition) will be processed by your clients into canned (or otherwise packaged) tuna, which will then be shipped directly to the United States by ocean freight. You seek a determination on whether the finished, packaged tuna products will be eligible for duty-free treatment under AGOA. We note that Mauritius, Seychelles and certain other nations are listed as “Beneficiary Sub-Saharan African Countries” (“BSACs”) for purposes of AGOA (HTSUS indicator “D”) in General Note 16 of the HTSUS.
You state that in the first stage of the processing in Mauritius, the tuna will be thawed, cut and butchered, cleaned, cooked, skinned and removed from the bone. In the next stage, it will be mixed with either oil (olive oil or sunflower oil) or water, salt and other ingredients. It will then be inserted into either cans, glass jars, or foil pouches. The cans, jars, or pouches will then be sealed, washed, coded, labeled, and packed into cartons for export to the U.S. It is assumed that the sealed cans, jars and pouches will be airtight containers.
The applicable subheading for the above-described tuna in airtight containers, when packed in oil or a medium containing oil, will be 1604.14.10, Harmonized Tariff Schedule of the United States (HTSUS), which provides for prepared or preserved fish … fish, whole or in pieces, but not minced: tunas, skipjack and bonito (Sarda spp.): tunas and skipjack: in airtight containers: in oil: The general rate of duty will be 35%.
The applicable subheading for the tuna, when not packed in oil or a medium containing oil and entered under quota, will be 1604.14.22, HTSUS, which provides for prepared or preserved fish … fish, whole or in pieces, but not minced: tunas, skipjack and bonito (Sarda spp.): 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. The general rate of duty will be 6%.
The applicable subheading for the tuna, when not packed in oil or a medium containing oil and entered after the tariff rate quota for subheading 1604.14.22 has filled, will be 1604.14.30, HTSUS, which provides for prepared or preserved fish … fish, whole or in pieces, but not minced: tunas, skipjack and bonito (Sarda spp.): tunas and skipjack: in airtight containers: not in oil: other. The general rate of duty will be 12.5%.
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 World Wide Web at http://www.usitc.gov/tata/hts/.
In order to qualify for duty-free treatment under AGOA, merchandise imported directly into the customs territory of the United States must:
(i) be the growth, product or manufacture of a designated beneficiary sub-Saharan African country, and
(ii) the sum of the cost or value of the materials produced in one or more designated beneficiary Sub-Saharan African countries, plus the direct costs of processing operations performed in the designated beneficiary sub-Saharan African country or any two or more designated beneficiary sub-Saharan countries that are members of the same association of countries which is treated as one country under section 507(a)2 of the 1974 Act, is not less than 35 percent of the appraised value of the merchandise at the time it is entered.
With respect to value, you have included the following statement of facts in your letter:
The value of the frozen or chilled tunas acquired from the Mauritian, Seychelles or
other AGOA beneficiary fishing vessels would typically represent approximately
30-35% of the appraised value of the final processed tuna (FOB basis, not including
transportation costs, profit and general expenses and business overhead such as
administrative salaries, casualty and liability insurance, advertising, and sales
representatives’ salaries, commissions, or expenses). The cost of the direct
processing and canning that will take place in Mauritius would typically
represent approximately at least 15% of the appraised value of the final canned
tuna, or more depending on whether the oil, other ingredients and packing
container originate in an AGOA country. Cumulating the value of the fish and
the direct processing and canning in Mauritius represents more than 35% of the
FOB value of the final tuna product.
In the outlined scenario, the finished goods (tuna in airtight containers) would be “products of” Mauritius. In addition, based on the information submitted, they would satisfy the 35 percent value-content requirement for AGOA purposes.
Accordingly, the subject goods, classifiable under subheadings 1604.14.10, 1604.14.22 and 1604.14.30, HTSUS, which are products of Mauritius, will be entitled to duty-free treatment under the African Growth and Opportunity Act (AGOA/“D”), upon compliance with all applicable regulations. Please be aware that the administration of AGOA is subject to modification, which may affect the status of your transaction at the time of entry for consumption or withdrawal from warehouse. Public notification of any changes generally would be published in the Federal Register, and may also be reflected on our Web site at www.cbp.gov.
This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at 301-575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Nathan Rosenstein at (646) 733-3030.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division