What's the HS Code for "Canned Tuna"?

NY H87079 January 24, 2002 CLA-2-16:RR:NC:2:231 H87079 CATEGORY: Classification TARIFF NO.: 1604.14.1000; 1604.14.2040; 1604.14.3040 Mr. Esra Turkyilmaz Dardanel Gida Yatirim A.S. Ahi Evran Cd. Polaris Is Merkezi Kat 10 80670 Maslak, Istanbul Turkey RE: The tariff classification of canned tuna from Turkey. Dear Mr. Turkyilmaz: In your letter, dated January 9, 2002, you requested a tariff classification ruling. The merchandise is described thus: Canned tuna in brine-skipjack, yellowfin Canned tuna in vegetable oil-skipjack, yellowfin Canned tuna in olive oil Canned sardines in vegetable oil. Canned sardines in tomato sauce. The applicable subheading for canned tuna in brine (item 1) will be 1604.14, Harmonized Tariff Schedule of the United States (HTS), under the provision for tunas and skipjack, in airtight containers, not in oil. Within this provision, classification will be under either one of two further subheadings. First, if entered within the tariff rate quota period, this tuna product will be classified in subheading 1604.14.2040, HTS, the provision for tuna, not in oil, in airtight containers weighing with their contents not over 7 kilograms 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 20 percent of the United States pack of canned tuna during the immediately preceding year, as reported by the National Marine Fisheries Service. The rate of duty will be 6 percent ad valorem. If entered after the tariff rate quota has been filled, this tuna product will be classified in subheading 1604.14.3040, HTS. The rate of duty will be 12.5 percent ad valorem. Note that the tariff rate quota for this merchandise opens on January 1 each calendar year, and closes when the full quota amount has been entered. The applicable subheading for canned tuna in vegetable oil (item 2) and canned tuna in olive oil (item 3) will be 1604.14.1000, HTS, 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, in airtight containers, in oil. The rate of duty will be 35 percent ad valorem. Your inquiry does not provide enough information for us to give a classification ruling on the canned sardines in vegetable oil (item 4) or the canned sardines in tomato sauce (item 5). Your request for a classification ruling should include the scientific name of this fish and a sample of each item. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR 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 Thomas Brady at (646) 733-3030. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division

NY A89387 November 25, 1996 CLA-2-16:RR:NC:2:231 A89387 CATEGORY: Classification TARIFF NO.: 1604.14.1000; 1604.14.2020; 1604.14.2040; 1604.14.3020; 1604.14.3040 Mr. Chris Leach Mitsubishi International Corporation 333 South Hope Street, Suite 2500 Los Angeles, CA 90071 RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA) of canned tuna from Mexico; Article 509 Dear Mr. Leach: In your letter dated November 5, 1996, you have requested a ruling on the status of canned tuna from Mexico under the NAFTA. The product is made from tuna of U.S. origin. The importer will purchase domestically frozen fish (albacore/yellowfin/ skipjack) caught by U.S. flag vessels. The fish will be sent to Mexico, where the following processing steps will be carried out: 1. The frozen fish will be thawed in a fish tank. 2. All fish will be gutted. Larger sized fish will be cut. 3. The fish will be pre-cooked. 4. The fish will be cooled. 5. The loins will be cleaned to remove meat with blood. 6. The cans will be filled with water or vegetable oil. 7. The cans will be seamed. 8. The cans will be sterilized. 9. The cans will be labeled and boxed. The applicable tariff provision for the canned tuna, if packed in airtight containers and in oil, will be 1604.14.1000, Harmonized Tariff Schedule of the United States (HTS), 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, in airtight containers, in oil. The general rate of duty will be 25 percent ad valorem. The canned tuna, if packed in airtight containers and in oil, being wholly obtained or produced entirely in the territories of Mexico and the United States, will meet the requirements of HTSUSA General Note 12(b)(i), and will therefore be entitled to a 7 percent ad valorem rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements. The applicable tariff provision for the canned tuna, if packed in airtight containers and not in oil, and if in containers weighing with their contents not over 7 kilograms each, and if albacore (Thunnus alalunga), will be 1604.14.2020, HTS, 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, in airtight containers, not in oil, in containers weighing with their contents not over 7 kilograms 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 20 percent of the United States pack of canned tuna during the immediately preceding year, as reported by the National Marine Fisheries Service, albacore (Thunnus alalunga). If the aforementioned canned fish is other than albacore (Thunnus alalunga), it is classifiable in subheading 1604.14.2040, HTS. The general rate of duty will be 6 percent ad valorem. Canned tuna classifiable in subheadings 1604.14.2020, HTS, and 1604.14.2040, HTS, being wholly obtained or produced entirely in the territories of Mexico and the United States, will meet the requirements of HTSUSA General Note 12(b)(i), and will therefore be entitled to a 1.2 percent ad valorem rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements. The applicable tariff provision for the canned tuna, if packed in airtight containers and not in oil, and if not in containers weighing with their contents not over 7 kilograms each, and if albacore (Thunnus alalunga), will be 1604.14.3020, HTS. If the aforementioned canned fish is other than albacore (Thunnus alalunga), it is classifiable in subheading 1604.14.3040, HTS. The general rate of duty will be 12.5 percent ad valorem. Canned tuna classifiable in subheadings 1604.14.3020, HTS, and 1604.14.3040, HTS, being wholly obtained or produced entirely in the territories of Mexico and the United States, will meet the requirements of HTSUSA General Note 12(b)(i), and will therefore be entitled to a 2.5 percent ad valorem rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements. In your correspondence you inquire as to the applicability of the partial duty exemption available under subheading 9802.00.50, HTS. Subheading 9020.00.50, HTS, provides for articles returned to the United States after having been exported to be advanced in value or improved in condition by any process of manufacture or other means, articles exported for repairs or alterations, other. Entitlement to this tariff treatment is precluded in circumstances where the operations performed abroad destroy the identity of the articles or create new or commercially different articles. See A.F. Burstrom v. United States, 44 CCPA 27, CAD 631 (1956). We note that the manufacturing process that is described in your letter indicates that the fish is cut, gutted, and canned. This procedure constitutes a manufacturing process that exceeds the scope of the term "alteration" for the purposes of subheading 9802.00.50, HTS. The process not only destroys the identity of the exported articles, but it results in the creation of new articles of commerce. Therefore, the fish is not entitled to a partial duty exemption upon return to the U.S. and 9802.00.50, HTS, does not apply. You inquire as to the country of origin marking requirements under the NAFTA. Based on the country of origin determinations under the NAFTA that are articulated in 19 CFR Part 102, and the fact that there is a tariff shift from Chapter 3 to Chapter 16, the merchandise becomes a product of Mexico for marking purposes. This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 CFR 181). This ruling letter is binding only as to the party to whom it is issued and may be relied on only by that party. 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 Ralph Conte at (212) 466-5759. Sincerely, Roger J. Silvestri Director National Commodity Specialist Division

NY H89794 March 22, 2002 CLA-2-16:RR:NC:2:231 H89794 CATEGORY: Classification TARIFF NO.: 1604.14.2020; 1604.14.3020 Mr. Achaya Tantharatana Authentic Thai Import House (AT Import House) 18662 MacArthur Boulevard, Suite 200 Irvine, CA 92612 RE: The tariff classification of canned tuna from Thailand. Dear Mr. Tantharatana: In your letter, dated March 13, 2002, you requested a tariff classification ruling. The merchandise is comprised of canned tuna, not in oil, and in airtight containers. It is described thus: Solid white albacore in brine. The ingredients are solid white tuna, water, vegetable broth, salt, and pyrophosphate. The product is packed in 6 ounce cans (170 grams), 48 cans per carton. Chunk albacore in brine. The ingredients are chunk white tuna, water, vegetable broth, salt, and pyrophosphate. The product is packed in 66.5 ounce cans (1,885 grams), 6 cans per carton. The applicable subheading for canned tuna in brine (items 1 and 2) will be 1604.14, Harmonized Tariff Schedule of the United States (HTS), under the provision for tunas and skipjack, in airtight containers, not in oil. Within this provision, classification will be under either one of two further subheadings. First, if entered within the tariff rate quota period, this tuna product will be classified in subheading 1604.14.2020, HTS, the provision for tuna, not in oil, in airtight containers weighing with their contents not over 7 kilograms 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 20 percent of the United States pack of canned tuna during the immediately preceding year, as reported by the National Marine Fisheries Service. The rate of duty will be 6 percent ad valorem. If entered after the tariff rate quota has been filled, this tuna product will be classified in subheading 1604.14.3020, HTS. The rate of duty will be 12.5 percent ad valorem. Note that the tariff rate quota for this merchandise opens on January 1 each calendar year, and closes when the full quota amount has been entered. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR 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 Thomas Brady at (646) 733-3030. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division

NY G80122 July 28, 2000 CLA-2-16:RR:NC:2:231 G80122 CATEGORY: Classification TARIFF NO.: 1604.14.1000; 1604.14.2040; 1604.14.3040 Mr. Thomas Hardie Tri-Port Worldwide 366 Pearsall Avenue Cedarhurst, NY 11516 RE: The tariff classification of canned tuna from Costa Rica. Dear Mr. Hardie: In your letter, dated July 25, 2000, you requested a classification ruling on behalf of your client, Premium Resources, Inc., Miami, FL. The merchandise, comprised of canned tuna, is described thus: “Tuna with Jalapeno Peppers.” The ingredients are 56.5 percent tuna, 17.89 percent water, 9.15 percent onions, 7.53 percent jalapeno, 5.38 percent carrots, 1.22 percent spices, 1.06 percent sugar, 0.63 percent vegetable broth, 0.41 percent acetic acid, and 0.23 percent salt. The net weight is 165 grams. “Tuna in Tropical Marinade.” The ingredients are 50.54 percent tuna, 24.47 percent vegetables, 14.36 percent vegetable oil, 8.54 percent water, 1.26 percent spices, 0.5 percent acetic acid, 0.23 percent salt, and 0.1 percent sugar. The net weight is 165 grams. “Tuna with Vegetables.” The ingredients are 45.36 percent tuna, 29.35 percent vegetables, 15.48 percent vegetable oil, 6.63 percent water, 1.82 percent sugar, 0.7 percent salt, 0.37 percent monosodium glutamate (MSG), 0.26 percent acetic acid, and 0.03 percent spices. The net weight is 165 grams. “Tuna in Oregano Marinade.” The ingredients are 57.65 percent tuna, 19.12 percent water, 16.14 percent vegetable oil, 6.65 percent oregano base, and 0.44 percent acetic acid. The net weight is 165 grams. “Tuna in Garlic Marinade.” The ingredients are 57.65 percent tuna, 19.12 percent water, 16.14 percent vegetable oil, 6.65 percent garlic base, and 0.44 percent acetic acid. The net weight is 165 grams. The applicable subheading for “Tuna in Tropical Marinade” (item 2), “Tuna with Vegetables” (item 3), “Tuna in Oregano Marinade” (item 4), and “Tuna in Garlic Marinade” (item 5), will be 1604.14.1000, Harmonized Tariff Schedule of the United States (HTS), 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, in airtight containers, in oil. The rate of duty will be 35 percent ad valorem. The applicable subheading for “Tuna with Jalapeno Peppers” (item 1) will be 1604.14, HTS, under the provision for tunas and skipjack, in airtight containers, not in oil. Within this provision, classification will be under either one of two further subheadings. First, if entered within the tariff rate quota period, this tuna product will be classified in subheading 1604.14.2040, HTS, the provision for tuna, not in oil, in airtight containers weighing with their contents not over 7 kilograms 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 20 percent of the United States pack of canned tuna during the immediately preceding year, as reported by the National Marine Fisheries Service. The rate of duty will be 6 percent ad valorem. If entered after the tariff rate quota has been filled, this tuna product will be classified in subheading 1604.14.3040, HTS. The rate of duty will be 12.5 percent ad valorem. Note that the tariff rate quota for this merchandise opens on January 1 each calendar year, and closes when the full quota amount has been entered. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR 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 Thomas Brady at 212-637-7064. Sincerely, Robert B. Swierupski Director, National Commodity Specialist Division

NY I83692 June 28, 2002 CLA-2-95:RR:NC:SP:225 I83692 CATEGORY: Classification TARIFF NO.: 1604.14.2020; 1604.14.3020 Mr. Gerald B. Horn Sandler, Travis & Rosenberg, P.A. 551 Fifth Ave. New York, N.Y. 10176 RE: The tariff classification of Kosher for Passover Tuna from Thailand Dear Mr. Horn: In your letter dated June 18, 2002 you requested a tariff classification ruling on behalf of your client Rema Foods. The item is Kosher for Passover canned solid white tuna packed in water. It is your contention that Kosher for Passover canned tuna is more appropriately classifiable as festive, carnival or other entertainment article in Heading 9505.90. We do not agree. For an item to be classified within the Festive Article Heading it must be more than used during the holiday, it must be a recognized symbol of that holiday. Religious dietary laws may require its followers to restrict their food intake during a specific period of time to certain foods, or foods prepared in a specific manner. Custom may create the expectation that certain foods will be available and served during specific holidays. Under either circumstance, those foods are not symbols of the holiday. Food is neither a decoration nor an article used to entertain. Food is necessary to sustain life. The applicable subheading for ‘Kosher for Passover’ canned solid white tuna, packed in water, will be 1604.14, Harmonized Tariff Schedule of the United States (HTS), under the provision Prepared or preserved fish: Fish, whole or in pieces, but not minced: Tunas, skipjack and bonito: Tunas and skipjack, in airtight containers, not in oil. Within this provision, classification will be under either one of two further subheadings. First, if entered within the tariff rate quota period, this tuna product will be classified in subheading 1604.14.2020, HTS, the provision for such tuna, packed in containers weighing with their contents not over 7 kilograms 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 20 percent of the United States pack of canned tuna during the immediately preceding year, as reported by the National Marine Fisheries Service, Albacore. The rate of duty will be 6 percent ad valorem. If entered after the tariff rate quota has filled, this tuna product will be classified in subheading 1604.14.3020, HTS. The rate of duty will be 12.5 percent ad valorem. 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 Alice J. Wong at 646-733-3026 or National Import Specialist Thomas Brady at 646 733-5030. Sincerely, Robert B. Swierupski Director, National Commodity Specialist Division

NY D87107 February 18, 1999 CLA-2-16:RR:NC:2:231 D87107 CATEGORY: Classification TARIFF NO.: 1604.14.1000; 1604.14.2040; 1604.14.3040 Mr. Sergio Lopez Traffic Systems Corporation P.O. Box 902-0641 San Juan, PR 00902-0641 RE: The tariff classification of canned tuna from Spain. Dear Mr. Lopez: In your letter, dated January 9, 1999, you have requested a tariff classification ruling on behalf of your client, B. Fernandez and Hnos, Inc., San Juan, PR. The merchandise is described thus: 1. Canned light tuna in olive oil. The brand name is "Albo." The ingredients are light tuna, olive oil, and salt. The net weight is 112 grams. 2. Canned light tuna in brine. The brand name is "Albo." The ingredients are light tuna, water, and salt. The net weight is 92 grams. The applicable subheading for canned light tuna in olive oil will be 1604.14.1000, Harmonized Tariff Schedule of the United States (HTS), 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, in airtight containers, in oil. The rate of duty will be 35 percent ad valorem. The applicable subheading for canned light tuna in brine will be 1604.14, HTS, under the provision for tunas and skipjack, in airtight containers, not in oil. Within this provision, classification will be under either one of two further subheadings. First, if entered within the tariff rate quota period, this tuna product will be classified in subheading 1604.14.2040, HTS, the provision for tuna, not in oil, in airtight containers weighing with their contents not over 7 kilograms 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 20 percent of the United States pack of canned tuna during the immediately preceding year, as reported by the National Marine Fisheries Service. The rate of duty will be 6 percent ad valorem. If entered after the tariff rate quota has been filled, this tuna product will be classified in subheading 1604.14.3040, HTS. The rate of duty will be 12.5 percent ad valorem. Note that the tariff rate quota for this merchandise opens on January 1 each calendar year, and closes when the full quota amount has been entered. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR 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 Thomas Brady at (212) 637-7064. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division 

NY C84076 February 18, 1998 CLA-2-16:RR:NC:2:231 C84076 CATEGORY: Classification TARIFF NO.: 1604.14.1000; 1604.14.2040 Mr. Robert Santiago RV Industries, Inc. 2801 Bankers Industrial Drive Doraville, GA 30360 RE: The tariff classification of canned tuna from the Philippines. Dear Mr. Santiago: In your letter, dated February 3, 1998, you have requested a tariff classification ruling. The products are canned, flake light tuna that has been packed in various sauces. The net weight is 184 grams per can. The merchandise is described thus: "Hot and Spicy" - listed as number 4 in your brochure. The ingredients are tuna flakes, soybean oil, water, spices, chili, and seasoning. "Bicol Express" - number 7 in your brochure. The ingredients are tuna flakes, coco milk, chili powder, sugar, spices, and seasoning. "Lechon Paksiw" - number 8 in your brochure. The ingredients are tuna flakes, soybean oil, water, vinegar, soy sauce, bread crumbs, sugar, salt, spices, and seasoning. "Binagoongan" - number 12 in your brochure. The ingredients are tuna flakes, water, fermented shrimp, soybean oil, red bell pepper, spices, and seasoning. The applicable subheading for "Hot and Spicy" (item 4), "Lechon Paksiw" (item 8), and "Binagoongan" (item 12), will be 1604.14.1000, Harmonized Tariff Schedule of the United States (HTS), 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, in airtight containers, in oil. The rate of duty will be 35 percent ad valorem. The applicable subheading for "Bicol Express" (item 7) will be 1604.14.2040, HTS, 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, in airtight containers, not in oil, in containers weighing with their contents not over 7 kilograms 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 20 percent of the United States pack of canned tuna during the immediately preceding year, as reported by the National Marine Fisheries Service, other. The rate of duty will be 6 percent ad valorem. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR 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 Ralph Conte at (212) 466-5759. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division

NY C84951 March 4, 1998 CLA-2-16:RR:NC:2:231 C84951 CATEGORY: Classification TARIFF NO.: 1604.14.1000; 1604.14.2040 Mr. Robert Santiago RV Industries, Inc. 2801 Bankers Industrial Drive Doraville, GA 30360 RE: The tariff classification of canned tuna from the Philippines. Dear Mr. Santiago: In your letter, dated February 26, 1998, you have requested a tariff classification ruling. The products are canned, light tuna that has been packed in various sauces. The net weight is 184 grams per can. The merchandise is described thus: "Chunks Spanish Style." The ingredients are tuna chunks, vegetable oil, spices, chili, diced carrots, bay leaves, and whole black pepper. "In Vegetable Oil" - listed as number 6 in your brochure. The ingredients are tuna flakes, soybean oil, water, spices, and seasoning. "With Tausi (Black Beans)" - number 9 in your brochure. The ingredients are tuna flakes, tausi (black beans), carrots, potatoes, soybean oil, paprika oil, spices, and seasoning. "Guandong Style" - number 11 in your brochure. The ingredients are tuna flakes, soy sauce, sugar, honey, vinegar, spices, and seasoning. "In Five Spice" - number 13 in your brochure. The ingredients are tuna flakes, water, soybean oil, carrots, potatoes, spices, and seasoning. The applicable subheading for "Chunks Spanish Style," "In Vegetable Oil" (item 6), "With Tausi (Black Beans)" (item 9), and "In Five Spice" (item 13), will be 1604.14.1000, Harmonized Tariff Schedule of the United States (HTS), 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, in airtight containers, in oil. The rate of duty will be 35 percent ad valorem.  The applicable subheading for "Guandong Style" (item 11) will be 1604.14.2040, HTS, 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, in airtight containers, not in oil, in containers weighing with their contents not over 7 kilograms 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 20 percent of the United States pack of canned tuna during the immediately preceding year, as reported by the National Marine Fisheries Service, other. The rate of duty will be 6 percent ad valorem. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR 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 Ralph Conte at (212) 466-5759. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division

NY C84077 February 18, 1998 CLA-2-16:RR:NC:2:231 C84077 CATEGORY: Classification TARIFF NO.: 1604.14.1000; 1604.14.2040 Mr. Robert Santiago RV Industries, Inc. 2801 Bankers Industrial Drive Doraville, GA 30360 RE: The tariff classification of canned tuna from the Philippines. Dear Mr. Santiago: In your letter, dated February 3, 1998, you have requested a tariff classification ruling. The products are canned, flake light tuna that has been packed in various sauces. The net weight is 184 grams per can. The merchandise is described thus: "Adobo" - listed as number 1 in your brochure. The ingredients are tuna flakes, water, soybean oil, soy sauce, vinegar, garlic, laurel leaves, spices, and seasoning. "Afritada" - number 2 in your brochure. The ingredients are tuna flakes, water, potatoes, green peas, bell pepper, spices, and seasoning. "Caldereta" - number 3 in your brochure. The ingredients are tuna flakes, water, potatoes, carrots, green peas, chili, paprika oil, sugar, spices, and seasoning. "Mechado" - number 5 in your brochure. The ingredients are tuna flakes, water, green peas, onions, spices, and seasoning. "Menudo" - number 10 in your brochure. The ingredients are tuna flakes, tomato sauce, potatoes, chick peas, green peas, carrots, onions, cornstarch, paprika oil, spices, and seasoning. The applicable subheading for "Adobo" (item 1), "Caldereta" (item 3), and "Menudo" (item 10), will be 1604.14.1000, Harmonized Tariff Schedule of the United States (HTS), 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, in airtight containers, in oil. The rate of duty will be 35 percent ad valorem. The applicable subheading for "Afritada" (item 2) and "Mechado" (item 5) will be 1604.14.2040, HTS, 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, in airtight containers, not in oil, in containers weighing with their contents not over 7 kilograms 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 20 percent of the United States pack of canned tuna during the immediately preceding year, as reported by the National Marine Fisheries Service, other. The rate of duty will be 6 percent ad valorem. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR 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 Ralph Conte at (212) 466-5759. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division

NY 860837 March 27, 1991 CLA-2-16:S:N:N1:229 CATEGORY: Classification TARIFF NO.: 1604.14.2040/1604.14.3040 Mr. Brad J. Berg 808 Christine Avenue # 301 Brookings, SD 57006 RE: The tariff classification of CANNED CHUNK STYLE YELLOWFIN TUNA in brine or in vegetable broth from Indonesia. Dear Mr. Berg: In your letter dated February 25, 1991, you requested a tariff classification ruling. The products in question are described as CANNED CHUNK STYLE YELLOWFIN TUNA, which will be packed either in brine or in a vegetable broth. This tuna will be imported in cans of 6.5 ounces each, forty-eight cans per export carton. The applicable subheading for CANNED CHUNK STYLE TUNA in brine will be in 1604.14 of the Harmonized Tariff Schedule of the United States (HTS) under the provision for Tunas and skipjack:...In airtight containers:...Not in oil. Within this provision, classification will be under either one of two further subheadings. First, if entered within the tariff rate quota period, this tuna product will be classified in subheading 1604.14.2040, HTS, the provision for tuna, not in oil, in airtight containers weighing with their contents not over 7 kilograms 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 20 percent of the United States pack of canned tuna during the immediately preceding year, as reported by the National Marine Fisheries Service. The rate of duty will be 6 percent ad valorem. If entered after the tariff rate quota has been filled, this tuna product will be classified in subheading 1604.14.3040, HTS. The rate of duty will be 12.5 percent ad valorem. Note that the tariff rate quota for this merchandise opens on January 1 each calendar year, and closes when the full quota amount has been entered. Your inquiry does not provide enough information for us to give a classification ruling on CANNED CHUNK STYLE YELLOWFIN TUNA in vegetable broth. Your request for a classification ruling should include a statement of all the ingredients used in the vegetable broth which constitutes the packing medium for this product. This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177). A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction. Sincerely, Jean F. Maguire Area Director New York Seaport

NY 849957 MAR 27 1990 CLA-2-16:S:N:N1:229 849957 CATEGORY: Classification TARIFF NO.: 1604.14.1000; 1604.14.2040; 1604.14.3040 Mr. Kenneth N. Hankin, President Global Marketing and Food Corporation 17500 S.W. 93 Place Miami, FL 33157-5775 RE: The tariff classification of TUNA and BONITO from the Philippines. Dear Mr. Hankin: In your letter dated February 20, 1990, you requested a tariff classification ruling. You describe these products as three types of tuna from the Philippines, namely Skipjack, Yellowfin and Bonito. All three species will be imported put up in cans, either in a brine (water/salt) pack or in an oil pack. The can sizes will be both 6 ounce and 66-1/2 ounce, net. Of the three fishes mentioned, only the Yellowfin (Neothunnus macropterus) and Skipjack (Katsuwonus pelamis) are considered as "tuna" species for tariff purposes. The applicable subheading for the Skipjack and Yellowfin will be in 1604.14 of the Harmonized Tariff Schedule of the United States (HTS) under the provision for Tunas and skipjack:...In airtight containers. Within this provision, classification will be under one of three further subheadings. First, if imported packed in oil, then the Skipjack and Yellowfin will be classified in subheading 1604.14.1000, HTS, the provision for tuna, in oil. The rate of duty will be 35 percent ad valorem. If imported not packed in oil, the classification will be under either one of two other subheadings. If entered within the tariff rate quota period, the Skipjack and Yellowfin will be classified in subheading 1604.14.2040, HTS, the provision for tuna, not in oil, in airtight containers weighing with their contents not over 7 kilograms 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 20 percent of the United States pack of canned tuna during the immediately preceding year, as reported by the National Marine Fisheries Service. The rate of duty will be 6 percent ad valorem. If entered after the tariff rate quota has been filled, the Skipjack and Yellowfin will be classified in subheading 1604.14.3040, HTS. The rate of duty will be 12.5 percent ad valorem. Note that the tariff rate quota for this merchandise opens on January 1 each calendar year, and closes when the full quota amount has been entered. Importations of Skipjack, Yellowfin and canned tuna products are subject to special regulations administered by the National Marine Fisheries Service. Information regarding these regulations may be addressed to that Agency at the following location: Regional Director National Marine Fisheries Service, Southwest Region 300 South Ferry Street, Room 2005 Terminal Island, CA 90731 Your inquiry does not provide enough information for us to give a classification ruling on the Pacific Bonito. Your request for a classification ruling should include the scientific name of this fish. Should you have any further questions about this issue or the contents of this memorandum, please contact NIS Thomas P. Brady at FTS 668-5790. This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177). A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction. Sincerely, Jean F. Maguire Area Director New York Seaport

HQ 960458 October 21, 1997 CLA-2 RR:CR:GC 960458K CATEGORY: Classification TARIFF NO.: 1604.14.20; 1604.14.30 Mr. Stanley F. Den Adel Corporate Secretary Marshall Islands Specialty Seafood Company, Inc. 17355 Lassen St. Northridge, California 91325 RE: "Tuna Jerky"; Marshall Islands; Tariff Rate Quotas Dear Sir: Your undated request for a classification ruling received on April 21, 1997, was referred to our office for a direct response by the Director, National Commodity Specialist Division, New York Seaport. Samples of the product were included. We have also received your additional submission dated September 30, 1997. Our ruling follows. FACTS: Tuna fish caught in the waters of the Marshall Islands and processed in the Marshall Islands is intended for direct shipment to the United States. The product is known as "Jerky Tuna". Fresh tuna fish is filleted, cut into thin strips, seasoned with marinade, dehydrated in an electric oven, and packaged as a food snack in one ounce and larger plastic packages. The condiments used to make the marinade are U.S. products. Although the dehydration eliminates spoilage as a problem, the plastic packages are further vacuum packed to extend the shelf life. ISSUE: The classification of "tuna jerky" and whether it is subject to a tariff rate quota. LAW AND ANALYSIS: Subheading 1604.14.20, Harmonized Tariff Schedule of the United States (HTSUS), provides for prepared or preserved fish, whole or in pieces, but not minced; 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 20 percent of the United States pack of canned tuna during the immediately preceding year, as reported by the National Marine Fisheries Service, with a general rate of duty at 6 percent ad valorem, if imported in quantities that fall within the limits as described, and, if the limits have been reached, the tuna fish is classified in subheading 1604.14.30, at the over the quota general rate of 12. 5 percent ad valorem. The merchandise as described is prepared or preserved tuna fish, in airtight containers, not in oil, and in containers not over 7 kg each. Accordingly, the merchandise is classified in subheadings 1604.14.20, or 1604.14.30, HTSUS, depending on whether the quantitative limitations have or have not been reached. However, General Note 10(a) and (b), HTSUS, concerning Products of the Freely Associated States, which includes the Marshall Islands, provides for free entry of merchandise under certain circumstances with certain exceptions. General Note 10(c) states that Tunas and skipjack, prepared or preserved, not in oil, in airtight containers weighing with their contents not over 7 kilograms each, in an aggregate quantity entered in any calendar year from the freely associated states not to exceed 10 percent of United States consumption of canned tuna during the immediately preceding calendar year, as reported by the National Marine Fisheries Service, may enter the customs territory free of duty; such imports shall be counted against, but not be limited by, the aggregate quantity of tuna, if any, that is dutiable under subheading 1604.14.20 for that calendar year. General Note 10(d)(I), states that the duty-free treatment provided under subdivision (b) of this note shall not apply to tunas and skipjack, prepared or preserved, not in oil, in airtight containers weighing with their contents not over 7 kilograms each, in excess of the quantity afforded duty-free entry under subdivision (c) of this note. Additional U.S. Note 3, Chapter 16, HTSUS, also states that For purposes of subheadings 1604.14.20 and 1604.14.30, tunas and skipjack from the freely associated states may be entered free of duty under the appropriate subheading in an aggregate quantity provided by, and under the terms set forth in, general note 10(c) to the tariff schedule. Goods from the freely associated states entered, or withdrawn from warehouse for consumption, in excess of such specified aggregate quantity shall be dutied under the appropriate subheading at the rate set forth in the "General" subcolumn of column 1. We conclude that the product known as "Tuna Jerky" is classified in subheadings 1604.14.20 and 1604.14.30, HTSUS, depending as to whether the quantitative limitations have or have not been reached and are subject to the exceptions for free duty rates in accordance with General Note 10(c) and (d), and also subject to Additional U.S. Note 3, Chapter 16, HTSUS. HOLDING: The product known as "Tuna Jerky" from the Marshall Islands, as described above, is classified in subheading 1604.14.20, HTSUS (1997), with a free rate of duty if within the 10 percent limitation of General Note 10(c) and (d), HTSUS. If the quantitative limitation of General Note 10(c) and (d) has been reached, but it is still within the quantitative limitation of 20 percent of subheading 1604.14.20, HTSUS, the product is dutiable at 6 percent ad valorem. If the quantitative limitation of 10 percent under General Note 10(c) and (d), HTSUS, and the quantitative limitation of 20 percent under subheading 1604.14.20, HTSUS, have both been reached, the product is classified in subheading 1604.14.30, HTSUS, with a general rate of duty at 12.5 percent ad valorem. Sincerely, John Durant, Director Commercial Rulings Division

N013744 July 24, 2007 CLA-2-16:RR:NC:SP:231 CATEGORY: Classification TARIFF NO.: 1604.14.1091; 1604.14.2299; 1604.14.3099 Ms. Myriam D. Rosa Air Land Sea-Ways Inc. P.O. Box 9021253 San Juan, P.R. 00902-1253 RE: The tariff classification of canned tuna from Spain. Dear Ms. Rosa: In your letters dated June 28 and July 6, 2007, you requested a tariff classification ruling on behalf of B. Fernandez & Hnos. Inc. Photocopies of the labels representing two canned fish products were submitted with your inquiry for our review. The label of one product reads: “White Tuna (Atlantic Bonito) in Olive Oil.” A photo on the label depicts what appears to be “solid white tuna.” The net weight is stated to be 4 ounces, and the ingredients are stated to be white tuna, olive oil and salt. You have advised that the species of this canned fish is Thunnus alalunga. The label of the other product reads: “White Tuna (Atlantic Bonito) in Brine.” A photo on the label depicts what appears to be “solid white tuna.” The net weight is stated to be 4 ounces, and the ingredients are stated to be white tuna, water and salt. You have advised that the species of this canned fish is Thunnus albacares. You have suggested the possibility that these products might be classifiable in subheading 1604.19 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for prepared or preserved fish, whole or in pieces, but not minced, other than those kinds of fish enumerated in preceding 6-digit subheadings of heading 1604. However, we find that Thunnus alalunga and Thunnus albacares are known as albacore tuna and yellowfin tuna, respectively, and that for tariff purposes they are considered tunas specifically provided for in subheading 1604.14, HTSUS. The applicable subheading for the canned white tuna (Thunnus alalunga) in olive oil will be 1604.14.1091, 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: other : albacore. The rate of duty will be 35%. The applicable subheading for the canned white tuna (Thunnus albacares) in brine, if entered under quota, will be 1604.14.2299, 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: other: other. The rate of duty will be 6%. The applicable subheading for the canned white tuna (Thunnus albacares) in brine, if entered after the tariff rate quota for subheading 1604.14.22 has filled, will be 1604.14.3099, 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: other: other. The 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/. 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

HQ 967515 March 21, 2005 CLA-2:RR:CR:GC 967515 IOR CATEGORY: Classification Tariff No.: 1604.14.1010, 1604.14.2291, 1604.14.3091 William Outman, II, Esq. Stuart P. Seidel, Esq. Baker & McKenzie LLP 815 Connecticut Avenue, NW Washington DC 20006-4078 RE: Flavored tuna in a pouch Dear Messrs. Outman and Seidel: This is in response to your ruling request of November 2, 2004, to the National Commodity Specialist Division (NCSD) New York, requesting a binding ruling on the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of flavored tuna products, on behalf of Del Monte Foods. Your ruling request was referred to this office by the NCSD for reply. Samples of the product were submitted to the NCSD and to this office. Our decision follows a February 23, 2005 teleconference between members of my staff, you and your client. You have also submitted additional arguments in support of your position by way of a copy of the February 25, 2002 submission made with respect to New York Ruling H88884, dated March 26, 2002. By your letter of February 11, 2005, and four attachments thereto, you have indicated the information you request be treated as confidential. We have granted your request that the formulary percentages of the ingredients in the tuna products, and the names of certain ingredients not otherwise disclosed to the public be treated as confidential. FACTS: The subject merchandise consists of four varieties of imported tuna. The different varieties are Teriyaki B, Lemon Pepper YF Strips, Plain A and Mesquite MZ-2A. The tuna is fully cooked, ready to eat, in retail size, airtight foil pouches. You provided us with samples of the Lemon Pepper YF Strips and the Mesquite MZ-2A, and provided the NCSD with samples of all four varieties. The Teriyaki B variety consists of large tuna chunks in a thin, brown sauce. Ingredients in addition to tuna are soy sauce, distilled white vinegar, sugar, water and teriyaki flavorant. The Lemon Pepper YF Strips variety consists of large chunks (up to two and three inches in length, and one inch in width) and smaller pieces, of tuna, packed in a viscous yellowish sauce. Ingredients in addition to tuna are water, sunflower oil, distilled white vinegar, flavorants, sugar, salt, citric acid, guar gum, cracked pepper, lemon pepper seasoning and lemon flavor. The Plain A variety consists of small pieces of tuna in a sauce. Ingredients in addition to tuna are water, sunflower oil, fresh garlic, salt, xantham gum, broth, and parsley. The Mesquite MZ-2A variety consists of large chunks of tuna (three inches in length, and one inch in width), in a viscous sauce. Ingredients in addition to tuna are water, mesquite flavorant, xantham gum, caramel color, and sunflower oil. In the Lemon Pepper YF Strips, Plain A, and Mesquite MZ-2A varieties, the percentage of oil added is minimal. You assert that the oil is used as a carrier for the flavoring in which the tuna is marinated, as opposed to use as a packing medium. With regard to these varieties, the amount of sauce evident in the package appears to be about one teaspoonful. You request that the tuna preparations be classified in subheadings 1604.14.22 or 1604.14.30, HTSUS, depending on the time of year of the importation, as tuna, in airtight containers, not in oil. 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 subheadings 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. In your February 25, 2002 submission you assert, with no authority, that in Strohmeyer, “the fish boiled in oil had been saturated with a far higher oil content than any fish product merely packed or preserved in oil.” The court was not concerned about the oil content in the fish, but made its decision based on the oil content of the substance in which the fish was found as packed. We do not find Strohmeyer distinguishable from the instant case. You also assert that there is a distinction between fish packed “with” or “containing” oil, and fish packed “in” oil. 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 “packed in oil.” The percentage of oil in the Lemon Pepper YF Strips, Plain A, and Mesquite MZ-2A varieties is less than the quantity 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 Lemon Pepper YF Strips, Plain A, and Mesquite MZ-2A varieties, 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 Lemon Pepper YF Strips, Plain A, and Mesquite MZ-2A 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 Lemon Pepper YF Strips, Plain A, and Mesquite MZ-2A tuna varieties 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. The tuna which is the subject of this ruling request is packaged in a sauce, and therefore does fall within the definition of “in oil” as set forth in the decision in Strohmeyer. You assert that the Food and Drug Administration (FDA) Standards of Identity for Canned Tuna, in 21 C.F.R. §161, which set forth requirements regarding the packing medium of canned tuna and the seasoning or flavoring of canned tuna, support your position that tuna flavored with oil is distinguishable from tuna packed in oil. However, “it is well established that statutes, regulations and administrative interpretations relating to ‘other than tariff purposes’ are not determinative of Customs classification disputes.” Amersham Corp. v. United States, 5 CIT 49, 56 (1983). See also Bestfoods v. United States, 342 F.Supp. 2d 1312 (Ct. Int’l Trade 2004). Articles are classified by the FDA to protect public safety, not as guidance to Customs and Border Protection (CBP) classification. HQ 085064, dated August 24, 1990. While CBP may consider the rules and regulations of other agencies, such as those of the FDA, it is not bound by them. See HQ 081289, supra. The Teriyaki B tuna is imported in a sauce which does not contain any oil. The Teriyaki B tuna variety, if entered within the tariff rate quota period, is 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 Teriyaki B tuna 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 Lemon Pepper YF Strips, Plain A, and Mesquite MZ-2A tuna varieties are classified in subheading 1604.14.1010, 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…: In foil or other flexible containers weighing with their contents not more than 6.8 kg each,” with a column one, general duty rate of 35% ad valorem. By application of GRIs 1 and 6, the Teriyaki B tuna is classified in subheading 1604.14.2291, 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 Service…Other: In foil or other flexible containers weighing with their contents not more than 6.8 kg each,” 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 Teriyaki B tuna is classified in subheading 1604.14.3091, 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: Other…Other: In foil or other flexible containers weighing with their contents not more than 6.8 kg each,” 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. Sincerely, Myles B. Harmon, Director Commercial Rulings Division

NY 864199 July 29, 1991 CLA-2-16:S:N:N1:229-864199 CATEGORY: Classification TARIFF NO.: 1604.14.2020; 1604.14.3020 Mr. Jeffrey H. Pfeffer Professional Services Group Fritz Companies, Inc. 40 Exchange Place, 12th Floor New York, NY 10005 RE: The tariff classification of frozen, cooked TUNA LOINS from Thailand or Ecuador. Dear Mr. Pfeffer: In your letter dated June 11, 1991, you requested a tariff classification ruling on behalf of Bumble Bee Seafood. The product in question is described as "fully cooked TUNA LOINS", seasoned with salt, hydrolyzed protein and vegetable broth, but containing no added oil. The loins will be imported frozen in clear, unmarked cryovac bags, which will be either heat sealed or, alternatively, closed with a clip and packed for export in any of three ways. First, individual loins in one to five kilogram portions, and individually packed in sealed cryovac bags, may be palletized, each pallet containing from 5 to 15 layers of loins for a total of 50 to 500 loins per pallet. Cardboard at the top and/or bottom of the pallet and fiber dividers between the layers of loins may also be used to protect the cryovac bags and to facilitate handling. Additionally, plastic stretch-wrapping of about 16 to 18 micron thickness may be placed around the sides of the pallet or around the entire pallet to facilitate handling. Finally, several plastic straps may be wrapped around the pallet to secure the loins during transportation. As an alternative to the pallet packing described, the loins may be packed in corrugated cartons, each holding up to 15 (but not less than 7) kilograms of tuna loins individually sealed in cryovac bags, as described above, or in larger corrugated shipping cartons of 40 inches by 48 inches, each holding between 50 and 500 loins, each loin individually sealed in cryovac bags. A sample of the plastic film used in making the cryovac bags in which the individual tuna loins will be packed was submitted to the Customs Laboratory and found to be impermeable to air at temperatures below freezing. Accordingly, tuna loins frozen in these cryovac bags and closed with a heat seal, would be considered "in airtight containers" for tariff purposes. Tuna loins packed in cryovac bags, whose ends have been gathered and closed with a metal clip, would not be considered tuna fish "in airtight containers". The applicable subheading for frozen, cooked TUNA FISH LOINS in heat sealed cryovac bags will be 1604.14.20, Harmonized Tariff Schedule of the United States (HTS), under the provision for Tunas and skipjack:...In airtight containers:...Not in oil. Within this provision, classification will be under either one of two further subheadings. First, if entered within the tariff rate quota period, these TUNA FISH LOINS will be classified in subheading 1604.14.2020, HTS, if Albacore tuna (Thunnus alalunga), or in subheading 1604.14.2040, HTS, if other than Albacore tuna, under the provision for tuna, not in oil, in airtight containers weighing with their contents not over 7 kilograms 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 20 percent of the United States pack of canned tuna during the immediately preceding year, as reported by the National Marine Fisheries Service. The rate of duty under either subheading will be 6 percent ad valorem. If entered after the tariff rate quota has been filled, these TUNA FISH LOINS will be classified in subheading 1604.14.3020, HTS, if Albacore tuna, or in subheading 1604.14.3040, HTS, if other than Albacore tuna. The rate of duty under either subheading will be 12.5 percent ad valorem. Note that the tariff rate quota for this merchandise opens on January 1 each calendar year, and closes when the full quota amount has been entered. The applicable subheading for these frozen, cooked TUNA FISH LOINS packed in cryovac bags sealed with a metal clip will be 1604.14.4000, Harmonized Tariff Schedule of the United States (HTS), which provides for Tunas, skipjack and Atlantic bonito (Sarda spp.):...Not in airtight containers:...In bulk or in immediate containers weighing with their contents over 6.8 kilograms each, not in oil. The rate of duty will be 1.1 cents per kilogram. With regard to the marking of these loins, you state, first, that the individual cryovac bags will not be marked or labeled in any manner, as the purpose of these bags is merely to keep the tuna loins separate and sanitary during processing and transportation and to facilitate handling of the product. The palletized loins will be sold intact to "a large scale customer," who will provide for each shipment a letter, in accordance with 19 C.F.R. Part 134.32(h), indicating that the ultimate consumer is aware of the country of origin of the loins and that it does not want individual bags to be so marked. In the case of tuna loins imported in cartons holding up to 15 kilograms of tuna, the cryovac bags will not be marked or labeled in any way but the corrugated carton, in which the loins will always be sold as a unit, will be marked to indicate the country of origin to the "large scale ultimate consumer". Loins shipped in large cartons of 40 inches by 48 inches will be in unmarked and unlabelled cryovac bags. The large cartons will be marked with the country of origin, and the loins would be sold only in whole 40 inch by 48 inch corrugated containers to "large scale entities." An additional submission by your office, dated July 24, 1991, identifies more narrowly the "large scale customer," or "ultimate consumer," who will receive this product, as tuna processors "who will utilize the loins to prepare tuna salad, etc.." You also state that, "[f]or palletized shipments, the entire pallet will be sold intact for this purpose." Finally, you state that some tuna may also be sold "to prisons and other large scale institutions for processing into these commodities." Section 134.11, in Title 19 of the Code of Federal Regulations, (19 C.F.R. 134.11), states that Unless excepted by law, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), requires that every article of foreign origin (or its con- tainer) imported into the United States shall be marked in a conspicuous place as legible, indelibly, and permanently as the nature of the article (or container) will permit, in such manner as to indicate to an ultimate purchaser in the United States the English name of the country of origin of the article, at the time of importation into the Customs territory of the United States. Containers of articles excepted from marking shall be marked with the name of the country of origin of the article unless the container is also excepted from marking. [Boldface added.] The term "ultimate purchaser" is defined in section 134.1(d) in the Code of Federal Regulations (19 C.F.R. 134.1(D), as "generally the last person in the United States who will receive the article in the form in which it was imported. It is not feasible to state who will be the 'ultimate purchaser' in every circumstance. The following examples may be helpful: (1) If an imported article will be used in manufacture, the manufacturer may be the "ultimate purchaser" if he subjects the imported article to a process which results in a substantial transformation of the article, even though the process may not result in a new or different article. (2) If the manufacturing process is merely a minor one which leaves the identity of the imported article intact, the consumer or user of the article, who obtains the article after processing, will be regarded as the "ultimate purchaser." (3) If the article is to be sold at retail in its imported form, the purchaser at retail is the "ultimate purchaser." (4) If the imported article is distributed as a gift the recipient is the "ultimate purchaser"." In the instant case, you believe that your client's customers, tuna processors, who will process these loins into tuna salad, are the "ultimate purchasers" of this merchandise. We concur. In our opinion, the processing of the tuna loins, in combination with other ingredients such as, for example, with mayonnaise, vegetables, seasonings and spices, would substantially transform these tuna loins into a new and different article of commerce,--namely, into tuna salad. These tuna processors, then, would be considered the "ultimate purchasers" of the tuna loins, as defined in section 134.1(d). Further, in our opinion, institutional users, such as, for example, prisons or hospitals, which will further process the tuna loins by combining them with other ingredients to make tuna salads or tuna casseroles, or utilizing them in the preparation of individual meals, or in similar applications, would also be considered "ultimate purchasers," as defined in the statute. Secondly, you state that importations of tuna loins in unmarked pallets will be entered with a letter from the domestic customer, "prepared in accordance with 19 C.F.R. 134.32(h), indicating that the ultimate consumer is aware of the country of origin and that it does not want individual bags to be marked." After reviewing Section 134.32, we do not believe that this exception has application in the transactions described in your letter. Section 134.32 (h) states that "[t]he articles described or meeting the specified conditions set forth below are excepted from marking requirements (see Subpart C of this part for marking of the containers): ... (h) Articles for which the ultimate purchaser must necessarily know the country of origin by reason of the circumstances of their importation or by reason of the character of the articles even though they are not marked to indicate their origin. ... In the transactions you describe, the "ultimate purchasers" of these frozen tuna loins will be domestic food processors or institutional users, who will purchase the product from your client, the actual importer of the merchandise. As customers of the importer, these "ultimate purchasers" are removed from all aspects of the import transaction. They do not, for example, deal with the foreign seller, nor are they involved in the details of the importation. Because they are divorced from the particulars of the import transaction, domestic customers may not be said to "necessarily know the country of origin" [of this tuna] "by reason of the circumstances of their importation," as required by the statute. Nor would the character of the tuna loins themselves provide evidence of their origin. Accordingly, in our opinion, the palletized tuna loins, which will be resold to an "ultimate purchaser" only in units of whole, intact pallets, must be marked on the pallet with the country of origin. Finally, on the importation of marked pallets of unmarked frozen tuna loins which have been sold to a tuna processor for further manufacture into tuna salad, an exception from country of origin marking requirements for the individual tuna loins may be requested by the importer pursuant to section 134.32(d) of the Code of Federal Regulations (19 C.F.R. 134.32(d)). This request should include a written statement or declaration from the "ultimate purchaser", (1) stating that he purchases only whole, intact pallets of tuna loins from the importer, (2) noting the number of pallets purchased from the instant shipment, and (3) stating that the imported tuna loins will be further processed by him, in combination with other ingredients, into a tuna salad. On the importation of frozen tuna loins in corrugated cartons, where the cartons are marked but the individual loins are not marked, and sales are made in whole carton units, a request for an exception to country of origin marking requirements may be made by the importer, pursuant to section 134.32(d), provided that such request is accompanied by a statement or declaration, as described above, from the "ultimate purchaser," as defined in section 134.1. This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177). A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction. Sincerely, Jean F. Maguire Area Director New York Seaport

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 Service…Other: 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: Other…Other: 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 Tariff Classification and Marking Branch