• HQ H226236
• Jul 29, 2013

• Type : Classification • HTSUS : 0304.87.00
•  Related:   968047; 968048; 560931; N209981; H034679   

CLA–2 OT:RR:CTF:TCM H226236 AMM

Port Director
U.S. Customs and Border Protection
Service Port of Champlain, NY
237 West Service Road
Champlain, NY 12919
Attn: John M. Sullivan, SIS

RE: Request for Internal Advice; Classification of Frozen Tuna Fillets Treated With “Tasteless Smoke”

Dear Mr. Sullivan:

This is in response to your Request for Internal Advice, dated November 21, 2012, regarding the classification of certain frozen tuna fillets treated with a “tasteless smoke” process, under the Harmonized Tariff Schedule of the United States (HTSUS), entered by Sea Delight, LLC (Sea Delight). It should be noted that Sea Delight filed a Ruling Request for a prospective transaction of this merchandise under 19 C.F.R. §177.1(a)(1) on May 22, 2012, with this office. However, it was discovered that Sea Delight had entered identical merchandise at the Port of Champlain on March 26, 2012, under Entry No. XXX XXXX288-9. As a result of this discovery, the file was converted to a Request for Internal Advice, under 19 C.F.R. §177.5.

In reaching our decision, Customs and Border Protection (CBP) has taken into consideration your comments, the comments of the Port of Miami (at which other entries of similar merchandise have occurred), two conference calls held with representatives from CBP Headquarters and Sea Delight (on August 10, 2012 and January 17, 2013), and two supplemental submissions from Sea Delight, dated October 17, 2012 and January 17, 2013. FACTS:

On March 26, 2012, Sea Delight entered several types of frozen tuna at the Port of Champlain, under Entry No. XXX XXXX288-9. The products are described as “TS Albacore Loin,” “TS Saku Tuna,” and “TS Tuna Loin.” The term “TS” is an abbreviation for “tasteless smoke.” The entered tuna is cut into various sizes, individually vacuum packed in airtight containers without oil, and shipped in master cartons of 15 lbs. or greater.

On May 22, 2012, Sea Delight submitted a ruling request concerning the classification of five types of frozen tuna under the HTSUS. The products are to be shipped in master cartons of 15 lbs. or greater. These cartons contain vacuum packed portions of skinless, boneless, frozen tuna treated with “tasteless smoke.” The tuna cuts are described as “loins”, “steaks”, “saku”, “strips”, and “poke cubes”. CBP has determined that the merchandise described in this ruling request is substantially similar to the merchandise entered at the Port of Champlain, under Entry No. XXX XXXX288-9.

Tuna loins are cut from the main body of the tuna fish, from the top of the spine to the belly, after the head, tail, and guts have been removed. The loin is generally removed in four sections because of the size. After removal, the loins are sliced into individual 3 to 5 lb. pieces, 5 to 8 lb. pieces, or 8 to 12 lb. pieces. The pieces are then frozen and individually vacuum packed in clear plastic and placed in 30 lb. master cartons.

Tuna steaks are cut from loin meat at a perpendicular angle into 4 oz., 6 oz., or 8 oz. pieces, which are frozen and individually vacuum packed. They will be imported in 15 lb. master cartons.

Saku is a rectangular block cut of tuna used in making sushi or sashimi that is cut from the loin meat at a parallel angle. Saku will be imported in bulk 15 lb. master cartons containing frozen individually vacuum packed portions of 4oz., 6 oz., 10 oz., or 12 to 16 oz. blocks.

Tuna strips, also called “crazy cuts,” are strips of meat cut from the tuna loin that are similar in size and shape to chicken tenderloins. They are vacuum packaged in 1lb. increments, and shipped frozen in 15 lb. master cartons.

Poke cubes are 1-inch cubes of sashimi grade tuna cut from the tuna loin. Poke cubes will be imported frozen in 1lb. vacuum packs, shipped in 15 lb. master cartons.

The “tasteless smoke” treatment is a process by which a super-purified smoke is introduced to the flesh of the fish, in order to arrest the change in color (from red to brown). Sea Delight indicated during the conference call held on August 10, 2012, that it uses a patented process, described in U.S. Patent No. 5,972,401, issued to Kowalski on October 26, 1999 (Kowalski), to manufacture the tasteless smoke used for treating the instant merchandise. Sea Delight further indicated that their gas consists of a mixture of purified carbon dioxide, carbon monoxide, nitrogen, oxygen, and methane. The gas is either injected directly into the meat, or is allowed to penetrate exposed surfaces of the loin in a chamber or a bag. Fish treated with “tasteless smoke” may take a day or two longer than untreated tuna to decompose at temperatures below freezing.

ISSUE:

Whether the instant frozen tuna pieces, treated with “tasteless smoke” process are classified as “fish fillets” under heading 0304, HTSUS, as “smoked fish” under heading 0305, HTSUS, or as “prepared or preserved fish” under heading 1604, HTSUS.

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined 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 GRI may then be applied.

The 2013 HTSUS provisions at issue are:

0304 Fish fillets and other fish meat (whether or not minced), fresh, chilled or frozen: Frozen fillets of other fish: 0304.87.00 Tunas (of the genus Thunnus), skipjack or stripe-bellied bonito (Euthynnus (Katsuwonus) pelamis) --------------------------- 0305 Fish, dried, salted or in brine; smoked fish, whether or not cooked before or during the smoking process; flours, meals and pellets of fish, fit for human consumption: Smoked fish, including fillets, other than edible fish offal: 0305.49 Other: 0305.49.40 Other --------------------------- 1604 Prepared or preserved fish; caviar and caviar substitutes prepared from fish eggs: Fish, whole or in pieces, but not minced: 1604.14 Tunas, skipjack and bonito: Tunas and skipjack: In airtight containers: Not in oil: 1604.14.30 Other

Note 1 to Chapter 16, HTSUS, states: “This chapter does not cover meat, meat offal, fish, crustaceans, molluscs or other aquatic invertebrates, prepared or preserved by the processes specified in chapter 2 or 3 or heading 0504.”

Additional U.S. Note 1 to Chapter 16, HTSUS, states: “For the purposes of this chapter, 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.”

Additional U.S. Note 3 to Chapter 16, HTSUS, states:

For purposes of subheadings 1604.14.22 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.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The General EN to Chapter 3 states, in pertinent part:

This Chapter covers all fish and crustaceans, molluscs and other aquatic invertebrates, whether live or dead, presented for direct consumption, or for industrial purposes (canning, etc.), for spawning, for aquaria, etc., with the exception of dead fish (including livers and roes thereof), crustaceans, molluscs and other aquatic invertebrates which are unfit or unsuitable for human consumption by reason of either their species or their condition (Chapter 5). * * * The expression “frozen” means that the product has been cooled to below the product’s freezing point until it is frozen throughout. * * * Distinction between goods of this Chapter and those of Chapter 16.

This Chapter is limited to fish (including livers and roes thereof) and crustaceans, molluscs and other aquatic invertebrates in the states described in the headings. Subject to this proviso, they remain classified in the Chapter whether or not they have been cut, chopped, minced, ground, etc. * * * On the other hand, fish and crustaceans, molluscs and other aquatic invertebrates are classified in Chapter 16 if they have been cooked or otherwise prepared or preserved by processes not provided for in this Chapter (e.g., fish fillets merely covered with batter or bread crumbs, cooked fish); it should, however, be noted that smoked fish and smoked crustaceans, molluscs and other aquatic invertebrates, which may have undergone cooking during or before the smoking process, and crustaceans in their shells simply steamed or boiled in water, remain classified in headings 03.05, 03.06, 03.07 and 03.08, respectively * * * It should also be noted that fish and crustaceans, molluscs and other aquatic invertebrates of this Chapter remain classified here even if put up in airtight containers (e.g., smoked salmon in cans). * * * Similarly, fish and crustaceans, molluscs and other aquatic invertebrates of this Chapter remain classified here (e.g., fresh or chilled fish) when subjected to packaging by means of a Modified Atmospheric Packaging (MAP) process. In a MAP process the atmosphere surrounding the product is altered or controlled (e.g., by removing or reducing the oxygen content and replacing it with or increasing the nitrogen or carbon dioxide content). * * *

EN 03.04 states, in pertinent part:

This heading covers:

(1) Fish fillets.

For the purposes of this heading the term fish fillets means the strips of meat cut parallel to the backbone of the fish and constituting the right or left side of a fish insofar as the head, guts, fins (dorsal, anal, caudal, ventral, pectoral) and bones (spinal column or main backbone, ventral or costal bones, branchial bone or stapes, etc.) have been removed and the two sides are not joined together, for example by the back or belly. The classification of these products is not affected by the possible presence of the skin, sometimes left attached to the fillet to hold it together or to facilitate subsequent slicing. Classification is similarly unaffected by the presence of pin bones or other minor bones which may not have been completely removed. Fillets cut in pieces are also classified as fillets in this heading. * * *

EN 03.05 states, in pertinent part:

This heading covers fish (whole, headless, in pieces, in fillets or minced) and edible fish offal which are: * * * (3) smoked. * * * Smoked fish is sometimes submitted, either before smoking or during smoking (hot smoking), to a heat treatment which partly or wholly cooks the meat; this does not affect its classification in this heading provided that it has not undergone any other processing which deprives it of the character of smoked fish. * * * The heading does not cover: * * * (b) Cooked fish (subject to the above provisions regarding smoked fish) and fish prepared in any other way, for example preserved in oil or vinegar or in a marinade, and caviar and caviar substitutes (heading 16.04). * * *

The General EN to Chapter 16 states, in pertinent part:

The Chapter covers such products which have been prepared or preserved by processes not provided for in Chapter 2 or 3 or heading 05.04[.] * * * For the distinctions to be drawn between the products of Chapters 2 and 3 on the one hand and of Chapter 16 on the other, see the General Explanatory Notes to Chapters 2 and 3. * * * EN 16.04 states, in pertinent part:

This heading covers: * * * (3) Fish, and their parts, prepared or preserved by other processes not provided for in headings 03.02 to 03.05, e.g., fish fillets merely covered with batter or bread crumbs, prepared milt and livers, finely homogenised fish (see the General Explanatory Note to this Chapter, Item (4)) and pasteurised or sterilised fish. * * *

Sea Delight imports frozen tuna in the form of “loins,” “steaks,” “saku,” “strips,” and “poke cubes.” They assert that these five products are properly classified under heading 0304, HTSUS, as “fish fillets.” The term “fish fillet” is not defined in the HTSUS. However, EN(1) to 03.04 describes “fish fillets” as:

[T]he strips of meat cut parallel to the backbone of the fish and constituting the right or left side of a fish insofar as the head, guts, fins (dorsal, anal, caudal, ventral, pectoral) and bones (spinal column or main backbone, ventral or costal bones, branchial bone or stapes, etc.) have been removed and the two sides are not joined together[.] * * * Fillets cut in pieces are also classified as fillets in this heading. * * *

Based on the information provided by Sea Delight, CBP agrees that the products at issue meet the description of “fish fillets” contained in EN(1) to 03.04. Generally, fish fillets are properly classified under heading 0304, HTSUS. See Headquarters Ruling Letter (HQ) 953654, dated January 26, 1994; New York Ruling Letter (NY) N209981, dated March 27, 2012.

However, the instant merchandise consists of frozen tuna fillets which have undergone a so-called “tasteless smoke” treatment. CBP must first consider whether this process renders the product “smoked fish,” such that it would be properly classified under heading 0305, HTSUS. See General EN to Chapter 3; EN(3) to 03.05. If the instant merchandise is not considered “smoked fish,” then CBP must consider whether the tasteless smoke process is a preparation or preservation process, such that the instant tuna fillets would be prima facie classifiable under heading 1604, HTSUS. See General EN to Chapter 3; EN(3) to 16.04. In considering whether the merchandise is classified under heading 1604, HTSUS, CBP must consider whether Note 1 to Chapter 16, HTSUS, would operate to exclude it from classification under heading 1604, HTSUS.

Heading 0305, HTSUS, provides in pertinent part for “[S]moked fish, whether or not cooked before or during the smoking process”. The term “smoked fish” is not defined in the HTSUS or in the ENs. The Multilingual Dictionary of Fish and Fish Products, 4th Ed., p. 211 (Blackwell Science, 1995), defines the term “smoked fish” as: “Fish cured by the action of smoke produced usually from slowly burning wood or other material (like peat) in order to partly dry the product and to give it some smoky taste.” CBP has previously determined that “the common meaning of the word ‘cured’ as used in referring to meat was ‘preserved,’” and that “curing encompasses smoking, drying, salting and/or the addition of sodium nitrate and/or sodium nitrite (to render the color heat stable, sugar, and spices.” See HQ 968047 and HQ 968048, both dated June 9, 2006 (both citing Mercantil Distribuidora, S.A., v. United States, 33 Cust. Ct. 158, 172 (1954), aff’d 43 C.C.P.A. 111 (1956)); See also Link Snacks, Inc. v. United States, 901 F. Supp. 2d 1369, 1373-74. The term “preserved” is not defined in the HTSUS. With regard to the term “preserved,” the Court of International Trade stated that:

It has been held that preservation in a tariff sense ordinarily involves cooking, salting, drying, smoking, curing, or the application of some method or process whereby the fresh or natural condition of the article is so changed as to be more of less a permanent preservation and that something more must be done to it than merely to arrest change and decomposition while in transit.

See Crawfish Processors Alliance v. United States, 431 F. Supp. 2d 1342, 1348 (Ct. Int’l. Trade 2006), aff’d 483 F.3d 1358 (Fed. Cir. 2007). (quoting Frosted Fruit Prods. Co. v. United States, 18 Cust. Ct. 119, 121 (1947)). See also United States v. Conkey & Co., 12 Ct. Cust. 552, 554-555, Treas. Dec. 40783, T.D. 40783 (1925).

The “tasteless smoke” treatment is a process by which a super-purified smoke is introduced to the flesh of the fish, in order to arrest the change in color (from red to brown). The purpose of the treatment “is to preserve the vitality of the seafood so that it appears and tastes similar to fresh fish after it is frozen and thawed.” See Kowalski, col. 1, lines 29-32. According to Kowalski, “[t]he smoke produced from burning wood and other organic material fuels contains water vapor, CO2, CO, CH4 (methane); tiny particulates of creosote, tar, soot, and trace elements; and over 390 microscopic compounds occurring in either, or both, particulate and gaseous (vapor) phases.” See Kowalski, col. 7, lines 47-51. The invention described by Kowalski “is primarily concerned with super-purifying smoke to eliminate the flavor and aroma components of both smoke and the seafood or meat subsequently treated. See Kowalski, col. 7, line 66, to col. 8, line 2; See also Kowalski, col. 11, line 45, to col. 12, line 6. The purification process is concerned with the removal of tar, moisture, and particulate residue, and with the removal of phenols in both the particulate and gaseous phases. See Kowalski, col. 11, lines 62-67, and col. 12, lines 3-6. The process described does not appear to remove oxygen, carbon monoxide, nitrous oxide, or nitrogen dioxide. See Kowalski, col. 11, lines 20-38, and col. 15, lines 52-56. During the conference call held on August 10, 2012, Sea Delight confirmed that their tasteless smoke contains carbon monoxide, carbon dioxide, nitrogen, oxygen, and methane. The removal of the phenols and particulates is intended to render the smoke “tasteless,” such that the treatment process does not alter the taste of the tuna fillets produced by Sea Delight.

Myoglobin is “the oxygen transporting pigment of muscle, a type of hemoprotein resembling a single subunit of hemoglobin, composed of one globin polypeptide chain and one heme group (containing one iron atom)[.]” Dorland’s Illustrated Medical Dictionary, 31st Ed., p. 1242 (Saunders Elsevier, 2007). According to Kowalski, myoglobin in its natural state is purple. See Kowalski, col. 11, lines 25-26. When the myoglobin reacts with oxygen, carbon monoxide, nitrous oxide, or nitrogen dioxide, it turns red. See Kowalski, col. 11, lines 26-30. This chemical reaction allows the meat to retain a red color (rather than turning brown) after it is thawed, thereby appearing similar to fresh fish. See Kowalski, col. 15, lines 52-56.

Exposure to tasteless smoke does not dry the instant tuna products. The process is intended to introduce certain chemicals (namely, oxygen, carbon monoxide, nitrous oxide, and nitrogen dioxide) to the flesh of the fish, so that a specific chemical reaction may occur. It does not remove water or other liquids from the fish. Furthermore, the tasteless smoke treatment does not create “preserved” tuna, because it does not change the condition of the tuna fillets so as to be more or less a permanent preservation. See Crawfish Processors, 431 F. Supp. 2d, at 1348. The treatment does not significantly improve the spoilage characteristics of the instant tuna fillets. See Sea Delight Supplemental Submission, dated October 17, 2012, page 2. No “smoky taste” is added to the fish by this process. See Kowalski, col. 3, lines 7-10 and 20-23, and col. 4, line 27. Nothing more has been done to the instant fillets than to merely arrest the color change for up to one year. See Kowalski, claims 24, 25, 26, and 57. Therefore, the instant products cannot be classified under heading 0305, HTSUS, as they do not have the characteristics of “smoked fish.”

Heading 1604, HTSUS, provides for “Prepared or preserved fish”. The terms “prepared” and “preserved” are not defined in the HTSUS. In Crawfish Processors Alliance v. United States, 431 F. Supp. 2d 1342, (Ct. Int’l. Trade 2006), aff’d 483 F.3d 1358 (Fed. Cir. 2007), the court discussed both terms. The definition of “preserved” has been discussed above. With regard to the term “prepared,” the court stated that “The word ‘prepared,’ in a tariff sense, means, ordinarily, that a commodity has been so processed as to be advanced in condition and made more valuable for its intended use.” See Crawfish Processors, 431 F. Supp. 2d, at 1349 (quoting Frosted Fruit, 18 Cust. Ct., at 120). See also Bruce Duncan Co., Inc., a/c Staalkat of America, Inc. v. United States, 67 Cust. Ct. 430, 434 (1971) (citing Stone & Downer Co. v. United States, 17 CCPA 34 (1929); United States v. J.H. Brown, 46 CCPA 1, 8 (1958).

Note 1 to Chapter 16, HTSUS, states that the chapter does not cover “fish… prepared or preserved by the processes specified in chapter 2 or 3 or heading 0504.” There are a number of preparation and preservation processes specified in Chapters 2 and 3, HTSUS, and in heading 0504, HTSUS. Furthermore, the General EN to Chapter 3 provides additional guidance on the distinctions between products of heading 0304, HTSUS, and heading 1604, HTSUS. See General EN to Chapter 3; General EN to Chapter 16.

The headings of Chapters 2 and 3, HTSUS, and heading 0504, HTSUS, specify the following processes: fish may be “fresh, chilled, frozen, salted, in brine, dried or smoked” (See Heading 0504, HTSUS; See also General EN to Chapter 3); fish may be scaled (See, e.g., subheading 0302.45.11, HTSUS) or skinned (See, e.g., subheading 0304.71.10, HTSUS); and fish may be cut into fillets (See Headings 0302, 0303, and 0304 HTSUS). Furthermore, the General EN to Chapter 3 states that fish may be “cut, chopped, minced, ground, etc.”, mixed with other fish of the chapter, smoked (which may include some pre-cooking), or subjected to a process known as MAP, which stands for “modified atmospheric packaging,” and still remain in Chapter 3. See General EN to Chapter 3.

The instant tuna products are cut into fillets, frozen and treated with tasteless smoke. The process of freezing is specified in heading 0504, HTSUS. The process of filleting is specified in heading 0304, HTSUS. Therefore, fish fillets that are merely prepared or preserved by freezing or filleting would not be covered by heading 1604. See Note 1 to Chapter 16, HTSUS. As discussed above, the tasteless smoke treatment does not create “preserved” tuna. Thus, we must focus whether the process creates a “prepared” tuna.

CBP has previously found that processes which change the taste of a food product, or render it suitable for a particular use, can alter its essential character, such that it becomes a “prepared fish” of heading 1604, HTSUS. See HQ 560931, dated July 8, 1998 (where the spicing and breading of crawfish tails altered the taste and use of the product such that it resulted “in the creation of a new article with a character and use which is different from that possessed by the article prior to processing.”); HQ H034679, dated September 15, 2008 (“The process by which the breading is added to the subject [cod] fillets indicates that the resulting products are permanently changed in terms of their taste and end-use.”).

According to Kowalski:

The intention of treatment with our tasteless super-purified smoke is to preserve the vitality of the seafood so it appears and tastes similar to fresh after it is frozen and thawed. In all cases seafood should be wholesome. However, seafood that is consumed uncooked for sashimi must be visually attractive in its raw form. The purpose of improving the aesthetic qualities is to create a seafood product which is visually suitable for sashimi after freezing and thawing. * * * The bright red color of sashimi tuna meat is a key factor in determining quality. If a tuna is very fresh and wholesome, but lacks red color, then it has no value for sashimi. From an economic point of view, the value of the tuna is established based on the degree of redness in the flesh. * * *

See Kowalski, col. 1, lines 27-36, and col. 2, lines 48-53. Sea Delight asserts that the process was originally used only in high grade tuna, including sashimi, but is now commonly used in other cuts of tuna. See Supplemental Submission, page 2. The instant products are sold primarily to grocery stores in bulk in master cartons. They are then thawed as needed, and placed individually in a refrigerated fish display case without any outer packaging. See Ruling Request, page 2, dated May 22, 2012.

The tasteless smoke process does not change the taste of the product. In fact, the tasteless smoke gas creation process is designed to eliminate components which impart flavor. See Kowalski, col. 1, lines 29-32; col. 7, line 66, to col. 8, line 2; col. 11, line 45, to col. 12, line 6. Furthermore, fillets treated with tasteless smoke are suitable for any of the same uses that untreated fillets can be subject to. The process does not render the treated fillets suitable for any particular purpose. The red color is specifically intended to make the tuna fillets appear fresh, and thus more attractive to the average consumer, but does not extend the shelf life of the product. Fillets that are treated or untreated can be put to all the same uses, whether fried, baked, broiled, or eaten raw. The fact that the color makes the product appear to be of a higher quality has no effect on the uses of the product. Hence, the tasteless smoke process does not advance the tuna in condition so as to make it more valuable under Frosted Fruit. Therefore, it is CBP’s conclusion that the tasteless smoke process does not create a “prepared tuna.” As such, for the reasons discussed above, the instant tuna fillets are not properly classified under heading 1604, HTSUS, as “prepared or preserved fish”.

Heading 0304, HTSUS, is an eo nomine heading which provides for “Fish fillets … frozen”. “[A]n eo nomine provision includes all forms of the named article, even improved forms.” CamelBak Prods., LLC v. United States, 649 F.3d 1361, 1365 (Fed. Cir. 2011) (quoting Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999)). “[A]n article which has been improved or amplified but whose essential characteristic is preserved or only incidentally altered is not excluded from an unlimited eo nomine statutory designation.” Casio, Inc. v. United States, 73 F.3d 1095, 1098 (Fed. Cir. 1996). The instant tuna fillets are an improved version of normal, frozen tuna fillets, as they are treated with “tasteless smoke” to improve their color. As discussed above, this treatment does not change the tuna fillets to “smoked fish” of heading 0305, HTSUS, nor does it change them to “prepared or preserved fish” of heading 1604, HTSUS. The instant tuna fillets do not “possess features substantially in excess of those within the common meaning of the term.” See CamelBak, 649 F.3d, at 1365 (quoting Casio, 73 F.3d, at 1098). They are properly classified under heading 0304, HTSUS, specifically under subheading 0304.87.00, HTSUS.

HOLDING:

By operation of GRI 1, the instant frozen tuna fillets, in the form of “loins,” “steaks,” “saku,” “strips,” and “poke cubes”, treated with a “tasteless smoke” process, and shipped in airtight containers not containing oil, are properly classified under heading 0304, HTSUS, specifically under subheading 0304.87.00, HTSUS, which provides for: “Fish fillets and other fish meat (whether or not minced), fresh, chilled or frozen: Frozen fillets of other fish: Tunas (of the genus Thunnus), skipjack or stripe-bellied bonito (Euthynnus (Katsuwonus) pelamis)”. The general, column one rate of duty is free.

Tuna treated with tasteless smoke must be labeled in accordance with 21 C.F.R. §101.95, which describes the labeling of foods treated with a chemical preservative. Duty rates are provided for your convenience, and are subject to change. A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.


Sincerely,


Myles Harmon, Director
Commercial Trade and Facilitation Division