Classification of Canned Tuna in a Sauce containing oil, product of France.

HQ 083948 JUN 5, 1989 CLA-2 CO:R:C:G 083948 JGH Category: Classification Tariff No: 1604.14.1000 Mr. Terry Ziegler Bowers Coffee Building, 104 Shackoe Slip Richmond, Va 23219 Suite 5-B RE: Classification of Canned Tuna in a Sauce containing oil, product of France. Dear Mr. Ziegler: Your letters of February 13, and May 4, 1989, concern the tariff classification of tuna in a sauce with oil added. Samples of the products were submitted and stated to contain the following ingredients: 1) (Tuna) A La Catalane- Tuna-40%, tomato sauce-30%, gherkins, onions-20%, wine vinegar, oi1-6%, salt, spices, flavoring, and thickener. 2) (Tuna) aux Condiments- Tuna-40%, onions-45%, vinegar-vegetable oi1-12%, gherkins, carrots, peppers, black olives, capers, natural flavoring, salt, sugar, spices, water, and thickener. 3) (Tuna) A La Provencale- Tuna-40%, tomato sauce-30%, gherkins, peppers, onions, capers, olives-20%, vinegar-olive oi1-14%, salt, spices, water, flavoring, thickener. 4) (Tuna) A L'Escabeche - Tuna-48%, onions-20%, tomato sauce-i0%, vinegar-vegetable oi1-14%, salt, spices, water, flavoring, thickener. 5) (Tuna) Au Curry- Tuna-40%, apples-25%, water-18%, curry-i%, vinegar-vegetable oi1-10%, onions, peppers, grapes, bananas, salt, flavoring and thickener. 6) (Tuna) A La Mayonnaise- Tuna-40%, mayonnaise (vegetable oi1)28%, artichoke bottoms-22%, vinegar-i0%, carrots, peas, potatoes, lemon juice, mustard, salt, starch, sugar, spices, and thickeners(sic). --2-- ISSUE: Whether the tuna products as described above are classified under the provision for tuna packed in airtight containers, in oil, in subheading 1604.14.1000, HTSUS. LAW ANALYSIS: Classification under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined first in accordance with headings and relative Section and Chapter notes. U.S. Legal note 1 to Chapte~ 16, HTSUS, states that for the purposes of the 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. This legal note is taken from the previous tariff law, the Tariff Schedules of the United States (TSUS), in which the same definition appeared as headnote 3, part 3, Schedule 1, TSUS, which concerned the tariff classification of fish. These definitions are based on a court case in which the issue was the classification of fish canned in oil and other substances. Strohmeyer & Arpe Co. v. United States, 5 C~. Cust. App. 527, T.D. 35175. In that case the fish was canned in a tomato sauce with about 5.7 percent oil added. The Court concluded that the tariff provision was intended to reach any case in which oil is a part of the substance in which the fish appeared when offered for importation. The added duty would apply in the case of oil alone or oil with other substances used in the preparation of the fish in packing. As can be seen from the legal note to the HTSUS, the definition still applies. HOLDING: Tuna packed in the various sauces as described above are classifiable in subheading 1604.14.1000, HTSUS, and dutiable at the rate of 35 percent ad valorem. Sincerely, John Durant, Director Commercial Rulings Division