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NY 864199

July 29, 1991



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.


Jean F. Maguire
Area Director

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