CLA-2 OT: CTF: TCM H243588 ERB
Supervisory Entry Specialist, Port of Savanah
U.S. Customs and Border Protection
1 East Bay Street
Savannah, GA 31401
Attn: Jessilynn Brinkley, Import Specialist
RE: Application for Further Review of Protest Number 1703-13-100079; Tariff classification of packaged tuna in oil
Dear Supervisory Entry Specialist:
This letter is in reply to the Application for Further Review (AFR) of Protest Number 1703-13-100079, filed March 6, 2013, by counsel on behalf of StarKist Company (StarKist). The Protest is against U.S. Customs and Border Protection’s (CBP) classification of tuna packaged in pouches under subheading 1604.14.10, of the Harmonized Tariff Schedule of the United States (HTSUS). No samples were provided to this office.
FACTS:
The subject merchandise is cooked albacore tuna, mixed with celery, water chestnuts, and a starch-based dressing, then packaged in hermetically-sealed pouches for individual retail sale. The starch-based dressing contains oil. The proportions of the product are as follows: cooked albacore tuna chunks (44.5%), water (27.87%), celery (9.00%), soy oil (5.29%), water chestnuts (4.39%), and spices, preservatives, flavorings, and extracts make up the remainder.
At issue are three entries, entered at the Port of Savannah between November 10, 2011 and December 15, 2011, and liquidated between September 21, 2012 and October 26, 2012. CBP liquidated the subject tuna pouches under subheading 1604.14.10, HTSUS, 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.” StarKist filed this AFR, arguing that the subject merchandise is properly classified as tuna “not in oil” under either subheading 1604.14.22, HTSUS, or subheading 1604.14.30, HTSUS.
ISSUE:
Whether individual pouches of cooked albacore tuna packaged with added sunflower oil is classified as tuna, in airtight containers, in oil, of subheading 1604.14.10, HTSUS, or not in oil, of subheading 1604.14.22, HTSUS or 1604.14.30, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103(2)(B)(ii), (iii)(codified as amended at 19 U.S.C. § 1514(c)(3)(2006)).
Further Review of Protest Number 1703-13-100079 is properly accorded to StarKist pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve a question of law or fact which has not previously been ruled upon by CBP or the Courts of International Trade. Specifically, how the term “in oil,” as it appears in Additional U.S. Note 1 to Chapter 16, applies to the subject tuna pouches, which have an oil-based dressing added to the tuna preparation after it is cooked, but before it is hermetically packaged.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs). GRI 1 requires that classification be determined first according to the terms of the heading of tariff schedule and any relative section or chapter notes, and unless otherwise required, according to the remaining GRIs taken in their appropriate order. The HTSUS headings under consideration here are as follows:
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 (Sarda spp.):
Tunas and skipjack:
In airtight containers:
1604.14.10 In oil:
1604.14.22 Not in oil:
In containers weighing with their contents not over 7kg 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
1604.14.30 Other
Additional U.S. Note 1 to Chapter 16 provides as follows:
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.
Because the instant classification analysis occurs beyond the four-digit heading level, GRI 6 is implicated. GRI 6 states:
For legal purposes, the classification of goods in the subheading of a heading shall be determined according to the terms of those subheadings and any related subheading notes, and mutatis mutandis to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter, and subchapter notes also apply, unless the context otherwise requires.
A food preparation described as cooked albacore tuna mixed with other ingredients is provided for in heading 1604, HTSUS, as prepared fish. The heading classification is not in dispute here. At the subheading level, the cooked albacore tuna is hermetically packaged in an airtight container. Subheading 1604.14, HTSUS, provides for this, and classification here is also not in dispute. The analysis thus turns to the 8-digit level, and determining whether oil in an airtight pouch of tuna means, for classification purposes that the fish is packaged “in oil.”
The issue of whether the presence of oil in an airtight container of tuna renders the product a preparation “in oil” or “not in oil” was addressed by the Court of International Trade (CIT) in Del Monte Corporation v. United States, 885 F. Supp. 2d 1315 (Ct. Int’l Trade 2012), aff’d Del Monte Corporation v. United States, 730 F.3d 1352 (CAFC 2013). There, tuna was cooked in oil and some of the cooked oil remained in the fish as it went to packaging. The presence of the oil was not in dispute by the parties. In Headquarters Ruling Letter (HQ) 967515, dated March 21, 2005, and HQ 967742, dated November 22, 2005, issued in response to a request to reconsider HQ 967515 that gave rise to the Del Monte Corporation litigation, CBP determined that the product was classified as fish “in oil”. The CIT, in affirming CBP’s position, applied Additional U.S. Note 1 to the relevant heading of Chapter 16, quoting, “…[T]he 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.” Del Monte Corporation v. United States, 885 F. Supp. 2d at 1319. In comparing the Del Monte case to a similar case, Strohmeyer & Arpe Co. v. United States, 5 Ct. Cust. App. 527 (1915), the CIT noted that it was immaterial how the oil became present in the tins of fish. Del Monte Corporation v. United States, 885 F. sup. 2d at 1319 citing 5 Ct. Cust. App. at 528. The tariff does not specify the method of application of the oil, nor does it require a certain amount. It is not relevant whether the oil is added solely for packing purposes or added for flavoring purposes. The presence of oil in the sauce in which the fish is found packaged is sufficient to describe the fish as packed “in oil” and brings the goods within the scope of subheading 1604.14.10, HTSUS. Del Monte Corporation v. United States, 730 F.3d at 1319 (affirming CBP’s ruling HQ 967742).
This result is directly applicable to the instant StarKist tuna pouches. It is undisputed that some oil is added to the tuna preparation. Regardless as to how it got there or why, any amount of oil added to a tuna preparation of heading 1604.14, HTSUS, means that at the 8-digit level, the good will be considered packaged “in oil.”
HOLDING:
Pursuant to GRI 1, the subject merchandise is classified under subheading 1604.14.1010, HTSUSA (Annotated), 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: In foil or other flexible containers weighing with their contents not more than 6.8kg each.” The column one rate of duty is 35% ad valorem.
The Protest should be DENIED.
You are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division