CLA-2 CO:R:C:F 953654 LPF
Laurence J. Lasoff, Esq.
Collier, Shannon, Rill & Scott
3050 K Street, NW
Suite 400
Washington, D.C. 20007
RE: Frozen pieces of fish meat; Heading 0304, HTSUS, Fish
fillets and other fish meat; Not heading 1604, Prepared or
preserved fish.
Dear Mr. Lasoff:
This is in response to your letter of March 23, 1993,
requesting the classification of frozen pieces of fish meat under
the Harmonized Tariff Schedule of the United States Annotated
(HTSUSA).
FACTS:
The subject product will be produced by cutting frozen fish
blocks into smaller pieces of different sizes. The blocks consist
of cod, Alaska pollock, or hoki fillets frozen into blocks of about
16.5 pounds each and having dimensions of 19 inches in length by
10 inches in width by 2.5 inches in thickness.
The blocks first may be cut lengthwise into eight identical
pieces called "bars," each weighing about 2 pounds and measuring
19 inches in length by 2.5 inches in width by 1.25 inches in
thickness. The blocks then may be cut lengthwise into 23 "shims,"
each measuring 19 inches in length by 2.5 inches in width by 0.41
inches in thickness and weighing approximately 11.5 ounces. Each
"shim" individually may be scored into five equally sized portions.
Each portion, weighing about 2.25 ounces, may be snapped off the
"shim" by restaurant personnel prior to cooking. Alternatively,
these "shims" may be cut into five equal pieces prior to
importation and packaged in two 20 pound plastic bags, two bags per
40 pound carton. We assume that the "bars" similarly will be
imported in bulk or in immediate containers weighing with their
contents over 6.8 kg each.
-2-
Each of these bars, shims, and pieces also may be dusted with
cereal flour prior to packaging and shipment to the U.S. As each
piece of frozen fish moves on a conveyor belt, it would be dusted
by a cascading "waterfall" of flour, so that the flour would
neither coat each piece completely nor cover each piece equally.
The amount of flour would constitute less than 3 percent of each
piece's total weight and would not create a finished product. Once
imported, the product is tempered in a refrigerator to bring its
temperature to a desirable level, cut and inspected, and then
dipped in batter and cooked by deep frying to create the desired
end product.
On December 20, 1993, you and your client met with us and
clarified the dusting process. It was noted that the flour
constitutes approximately 1-1/2 percent of each piece's total
weight, and from examination of samples we saw that the flour was
unevenly and irregularly sprinkled over the product and did not
permeate the fish. It was explained further that dusting never
had been a step in the preparation of the product and that although
it could facilitate adhesion of batter to the individual pieces,
too much flour would be undesirable partly because the batter would
become too thick. Through your presentation we learned that
dusting solely was used to achieve optimal shipping and transport
conditions (although it has somewhat helped preserve the product)
in lieu of the shatterpacks and other methods which proved less
successful.
ISSUE:
Whether the frozen fish bars, shims, and pieces are classified
in heading 0304 as fish fillets and other fish meat or in heading
1604 as prepared or preserved fish.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRIs) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUS. Most imported goods are classified
by application of GRI 1, that is, according to the terms of the
headings of the tariff schedule and any relative section or chapter
notes. The Explanatory Notes (ENs) to the Harmonized Commodity
Description and Coding System, which represent the official
interpretation of the tariff at the international level, facilitate
classification under the HTSUS by offering guidance in
understanding the scope of the headings and GRIs.
It is agreed that the frozen fish bars, shims, and pieces not
dusted with cereal flour are classified within heading 0304 as fish
fillets and other fish meat, fresh, chilled or frozen. The ENs to
0304 confirm that the heading covers fish fillets and other fish
meat often presented in the form of frozen blocks.
-3-
However, at the subheading level 0304.20 provides for frozen
fillets, while 0304.90 provides for other fish meat. We note that
this HTSUS distinction differs from the comparable provisions in
the Tariff Schedules of the United States (TSUS). In regard to
this distinction, the ENs indicate that:
[t]he term fish fillets means the strips of
meat cut parallel to the backbone of the fish
and constituting the right or left side of a
fish insofar as the head, guts, fins...and
bones...have been removed and the two sides
are not joined together....
Fillets cut in pieces are also classified as
fillets in this heading.
The ENs describe other fish meat as fish meat from which the bones
have been removed.
According to the terms of the heading (0304) and subheadings
(0304.20 and 0304.90) as well as the applicable ENs, the fish bars,
shims, and pieces do not qualify as fish fillets. Customs
maintains that because the desired product is a "cohesive mass" of
fish meat, as opposed to a fillet block weighing over 4.5 kg,
imported to be cut into uniform pieces (i.e., 0304.20.20) or
readily separable individual fillets (i.e., 0304.20.30), the
product does not retain the identity of the individual fillet.
For these reasons, and because it is our understanding that the
bars, shims, and pieces will be packaged in bulk or in immediate
containers weighing with their contents over 6.8 kg each, the
appropriate subheading is 0304.90.10.
In regard to the fish meat dusted with cereal flour, heading
0304 provides for fish fillets and other fish meat, fresh, chilled
or frozen, while heading 1604 provides for prepared or preserved
fish. Note 1 to Chapter 16 indicates that the chapter does not
cover fish prepared or preserved by the processes specified in
Chapter 3.
The ENs to heading 0304 state that the heading covers only fish
meat if i) fresh or chilled, whether or not packed with salt or ice
or sprinkled with salt water as a temporary preservative during
transport, or ii) frozen. The ENs add that fish meat remains in
the heading if slightly sugared or packed with a few bay leaves.
It is counsel's position that dusting merely is a step in the
packaging process designed to prevent the formation of frost during
shipment and to serve as a barrier against the adhesion of two or
more frozen fish bars, shims, or pieces. Counsel compares dusting
to the use of salt or sugar as a temporary preservative
-4-
during transport (i.e., heading 0304), rather than to the necessary
and more thorough step of battering or breading (i.e., heading
1604).
Customs notes that cereal flour traditionally has not been an
additive permitted by the ENs to heading 0304. However, from
examination of the product samples we have seen that the flour is
unevenly and irregularly sprinkled over the product and does not
permeate the fish. Further, counsel and his client have
represented to us that although the dusting process could, to a
certain extent, facilitate the adhesion of the batter to the
individual pieces, it has never been a step in the preparation of
the product. In fact, counsel adds that dusting serves solely as
a viable alternative to shatterpacks and other methods used to
transport the fish, primarily because of its prevention of adhesion
and the formation of frost during shipment. Thus, based on the
facts presented, the dusting serves merely to facilitate the
product's shipping and transport and does not constitute a
preparation included in heading 1604. The appropriate subheading
is 0304.90.10, HTSUS.
HOLDING:
The frozen fish meat is classifiable in subheading 0304.90.10,
HTSUSA, as "Fish fillets and other fish meat (whether or not
minced), fresh, chilled or frozen: Other: In bulk or in immediate
containers weighing with their contents over 6.8 kg each." The
product carries a free rate of duty.
Sincerely,
John Durant, Director
Commercial Rulings Division