No Duty Hike on Frozen Tuna Fillets as CBP Rules on Treatment to Maintain Color

Originally posted on Sandler, Travis & Rosenberg Trade Report

U.S. Customs and Border Protection has confirmed in HQ H226236, an internal advice decision issued July 29, that various cuts of frozen tuna fillets treated with a “tasteless smoke” process are classifiable as frozen tuna under HTSUS 0304.87.00 (duty-free). The decision marks a big win for fish importers and consumers given that CBP was considering a classification that would have resulted in a 12.5% duty on tuna and tariffs of 4-6% on other species of fish subject to similar treatments.

The skinless, boneless tuna at issue is cut into various sizes (described as loins, steaks, saku, strips and poke cubes) and individually vacuum packed in airtight containers without oil. Before the tuna is frozen it is treated with the tasteless smoke process (a mixture of purified carbon dioxide, carbon monoxide, nitrogen, oxygen and methane) to prevent the color from changing from red to brown, which is unappealing to consumers.

Following a lengthy review, which included detailed presentations by industry and seafood science experts with the assistance of Sandler, Travis & Rosenberg counsel, CBP agreed with the importer that this treatment does not affect the classification of the tuna. CBP ruled that the tuna fillets are not smoked fish under HTSUS 0305 because the tasteless smoke process does not cure the fish, does not change its condition in some other manner so as to preserve it, does not add a “smoky” taste and does nothing more than merely prevent the tuna from changing color. More importantly, CBP found that the fillets are not prepared or preserved fish under HTSUS 1604 because the tasteless smoke process does not advance them in condition so as to make them more valuable; e.g., does not change their taste, render them suitable for any particular purpose or extend their shelf life. CBP concluded that these fillets do not possess features substantially in excess of those of plain, frozen fillets and therefore remain classifiable under HTSUS 0304.

While CBP’s decision specifically addresses tuna treated with tasteless smoke, it also provides clarification on the scopes of HTSUS headings 0304, 0305 and 1604. Importers should confer with customs counsel to determine whether they may rely on this decision to classify other fish species treated with similar processes.