CLA-2 CO:R:C:F: 951652 ALS
District Director of Customs
P.O. Box 4688
312 Fore Street
Portland, Maine 04112
RE: Request for Further Review of Protest 0101-89-900203, dated
December 12, 1989, Concerning Canned Tuna in Oil Entered as
Animal Products Not Elsewhere Specified or Included, Unfit
for Human Consumption, Pet Food
Dear Mr. Ingalls:
This ruling is on a protest that was filed against your
decision of September 15, 1989, in the liquidation of a series of
entries covering the referenced item.
FACTS:
The article under consideration is canned tuna in oil
originally produced in Canada for human food use. Canadian
authorities found the canned tuna to be "tainted and/or decomposed"
and rejected its use as human food because it failed to meet the
minimum standards for such use although it was not rejected for
"health reasons." Canadian authorities permitted the canned tuna
to be exported to the United States provided it was exported for
sale as pet food. The canned tuna was entered under subheading
0511.99.30008, Harmonized Tariff Schedule of the United States
(HTSUSA), as products used as food for animals. Although it was
apparently shipped to a company in the United States for labelling
or relabelling as pet food, some of the canned tuna entered the
human food distribution system. This situation is the subject of
an ongoing investigation by the United States Food and Drug
Administration (FDA). You noted that the canned tuna was not
rejected for health reasons by Canadian authorities, that the tuna
was not specifically rejected by the - 2 -
FDA, and that histamine analyses confirmed that the tuna was within
acceptable levels for human consumption. You liquidated the series
of tuna entries under subheading 1604.14.1000, HTSUSA, the
provision for tuna and skipjack in airtight containers.
ISSUE:
Is the canned tuna fit for human consumption and how should
it be classified?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed by
the General Rules of Interpretation (GRI's) taken in order. GRI
1 provides that the classification is determined first in
accordance with the terms of the headings and any relative section
and chapter notes. If GRI 1 fails to classify the goods and if the
heading and legal notes do not otherwise require, the remaining
GRI's are applied, taken in order.
In considering this matter we initially noted that appropriate
Canadian authorities rejected the use of the canned tuna for human
consumption because it was tainted and/or decomposed. They
permitted it to be exported to the United States solely for sale
as animal food. The FDA, based on a memorandum of understanding
with the Canadian authorities, adopted such findings without
conducting its own analysis of the tuna. A recent telephonic
discussion with a FDA official confirmed that the FDA considers the
tuna unfit for human consumption based on the Canadian findings.
Although some of the tuna found its way into the human food
distribution system and the circumstances relative thereto are
under investigation by the FDA, we find that fact is not relevant
to the classification of the article. The relevant factor is that
the FDA, the primary agency responsible for determining whether
food is fit for human consumption, has concluded that the subject
tuna was unfit for human consumption. Since their conclusion is
based on the rejection by the Canadian authorities prior to
exportation of the tuna to the United States, we believe that it
is reasonable to conclude that the tuna was in such unfit condition
at the time of importation.
We next considered the subheadings which might be applicable
to the canned tuna. We initially noted subheading 1604.14.1000,
HTSUSA, regarding tuna...in airtight containers...in oil. In
considering whether the instant canned tuna was so classifiable,
we noted Chapter Note 1 of Chapter 16, which specifies that such - 3 -
chapter does not cover fish, etc., prepared or preserved by the
processes specified in Chapter 2 or 3. We, therefore, referred to
those chapters, specifically Chapter 3 relative to fish, to
ascertain their applicability hereto. In considering the
applicability of the provisions of Chapter 3 we noted that the
instant canned tuna has been processed beyond the processes
specified therein. We also noted Chapter Note 1(b) to Chapter 3
specifies that fish unsuitable for human consumption because of
their species or condition are classifiable in Chapter 5. Based
on the above, we concluded the instant canned tuna was not
classifiable in Chapter 3 because it was not prepared or preserved
by the processes specified therein and because it was unfit for
human consumption. We also concluded that it was not classifiable
in Chapter 16, although it was prepared or preserved beyond the
processes specified in Chapter 3, because of Note 1(b) to Chapter
3, and because we believe it is clear that the drafters of the
Harmonized Tariff System did not intend to place unfit food which
was prepared or preserved beyond the processes specified in Chapter
3 in Chapter 16 while excluding lesser processed food which was
unfit for human consumption.
We next considered whether the tuna should be classified under
subheading 0511.99.3000, HTSUSA, as an animal product not elsewhere
specified or included, unfit for human consumption, or under
subheading 2309.10.0010, HTSUSA, as dog or cat food put up for
retail sale in airtight containers.
Chapter 5, which includes the above-noted subheading, is a
residual chapter for section 1 of the HTSUSA relative to live
animals and animal products. It covers products not included in
Chapters 1-4, but processed to the same level. The "General"
portion of the Explanatory Notes (EN's) relative thereto, which
represents the considered opinion of the international
classification experts, specifies:
This Chapter covers a variety of materials of animals origin,
unwor
ked or
having
under
gone
a
simple
process
or
prepa
ration,
which
are not
norma
lly
used
as food
(except
certain
blood,
guts,
bladd
ers and
stoma
chs or
anima
ls) and
which
are not
dealt
with
in
other
chapt
ers of
the
Nomen
clatu
re.
The instant product, canned tuna which has been cooked and
permanently preserved by canning, and which contains oil, has been
processed beyond the levels permitted the products of section 1,
HTSUSA. The products of heading 0511, as indicated by - 4 -
the EN's, are crude animal substances. The instant product is a
preparation of dead fish, unfit for human consumption, which has
been put up for retail sale for use as pet food, presumably cat
food. As such, we believe that it is most specifically described
in the provision for preparations of a kind used in animal feeding
in heading 2309.
HOLDING:
Canned tuna unfit for human consumption put up for retail sale
in airtight containers for use as dog or cat food is classifiable
in subheading 2309.10.0010, HTSUSA, and subject to a free general
rate of duty.
Since reclassification of the merchandise as indicated above
will result in the same rate of duty as claimed you are instructed
to allow the protest in full.
A copy of this ruling should be attached to Customs Form 19
and provided to the protestant as part of the notice of action of
the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division