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HQ 951652

August 31, 1992

CLA-2 CO:R:C:F: 951652 ALS


TARIFF NO.: 2309.10.0010

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.


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.


Is the canned tuna fit for human consumption and how should it be classified?


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.


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.


John Durant, Director
Commercial Rulings Division

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