OT:RR:CTF:FTM H330112 TSM
TARIFF NO: 0303.89.0080
Ms. Ashley Hong
Nissin International Transport USA, Inc.
1540 W. 190th Street
Torrance, CA 90501
RE: Revocation of NY N306583; Tariff Classification of Frozen Buri Fish Collar
Dear Ms. Hong:
This letter is to inform you that U.S. Customs and Border Protection (“CBP”) has reconsidered New York Ruling Letter (“NY”) N306583, which was issued to Wismettac Asian Foods, Inc. on November 18, 2019. In NY N306583, CBP classified frozen collar of the fish buri, also known as Japanese amberjack or yellowtail (Seriola quinqueradiata), under subheading 0304.99.9190, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), which provides for: “Fish fillets and other fish meat (whether or not minced), fresh, chilled or frozen: Other, frozen: Other: Other: Ocean.” We have reviewed NY N306583 and found it to be incorrect. For the reasons set forth below, we are revoking this ruling.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625 (c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published in the Customs Bulletin, Vol. 57, No. 28, on July 19, 2023, proposing to revoke NY N306583, and to revoke any treatment accorded to substantially identical transactions. No comments were received in response to the notice.
FACTS:
In NY N306583, the merchandise was described as follows:
The subject merchandise is the frozen collar of the fish Buri, also known as, Japanese Amberjack or Yellowtail (Seriola quinqueradiata). According to the manufacturing process, the fish will be beheaded, eviscerated, the collar retrieved, rinsed, cooled, wiped dry, packaged, vacuum sealed, labeled, measured and frozen. The finished product, “Frozen Buri Collar” will be imported in bulk quantities of 12 pieces per each airtight bag and sold to the food service industry.
ISSUE:
What is the tariff classification of the frozen buri fish collar at issue?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (“GRIs”) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The 2023 HTSUS headings at issue are as follows:
0302 Fish, fresh or chilled, excluding fish fillets and other fish meat of heading 0304
* * *
0303 Fish, frozen, excluding fish fillets and other fish meat of heading 0304
* * *
0304 Fish fillets and other fish meat (whether or not minced), fresh, chilled or frozen
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTS and are thus useful in ascertaining the proper classification of the merchandise. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 03.03 states, in pertinent part, the following:
The provisions of the Explanatory Note to heading 03.02 apply, mutatis mutandis, to the products of this heading.
* * *
EN 03.02 states, in pertinent part, the following:
This heading covers fish, fresh or chilled, whether whole, headless, gutted, or in cuts containing bones or cartilage. However, the heading does not include fish fillets and other fish meat of heading 03.04. The fish may be packed with salt or ice or sprinkled with salt water as a temporary preservative during transport.
Fish slightly sugared or packed with a few bay leaves remains in this heading.
Edible fish offal separated from the rest of the body of the fish (e.g., skins, tails, maws (swim bladders), heads and halves of heads (with or without the brains, cheeks, tongues, eyes, jaws, or lips), stomachs, fins, tongues), as well as livers, roes and milt, fresh or chilled, are also classified in this heading.
* * *
EN 03.04 states, in pertinent part, the following:
This heading covers:
(1) Fish fillets.
For the purposes of this heading the 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 (dorsal, anal, caudal, ventral, pectoral) and bones (spinal column or main backbone, ventral or costal bones, branchial bone or stapes, etc.) have been removed and the two sides are not joined together, for example by the back or belly.
The classification of these products is not affected by the possible presence of the skin, sometimes left attached to the fillet to hold it together or to facilitate subsequent slicing. Classification is similarly unaffected by the presence of pin bones or other minor bones which may not have been completely removed.
Fillets cut in pieces are also classified as fillets in this heading.
Cooked fillets, and fillets merely covered with batter or bread crumbs, whether or not frozen, are classified in heading 16.04.
(2) Other fish meat (whether or not minced), i.e., fish meat from which the bones have
been removed. As in the case of fish fillets, classification of fish meat is unaffected by the presence of minor bones which may not have been completely removed.
* * *
This heading covers fish fillets and other fish meat (whether or not minced) in the following states only:
Fresh or chilled, whether or not packed with salt or ice or sprinkled with salt water as a temporary preservative during transport.
(ii) Frozen, often presented in the form of frozen blocks.
Fish fillets and other fish meat (whether or not minced) slightly sugared or packed with a few bay leaves remain in this heading.
* * *
EN 03.04 states in relevant part that heading 0304 covers “fish fillets,” which are strips of meat cut parallel to the backbone of the fish, constituting the right or left side of fish, insofar as the head, guts, fins, and bones have been removed and the sides are not joined together. EN 03.04 further provides for “other fish meat” from which the bones have been removed. Additionally, EN 03.04 explains that classification of “fish fillets” and “other fish meat” in heading 0304 is unaffected by the presence of minor bones which may not have been completely removed.
We note that the term “minor” is not defined by the HTSUS or within the ENs. When a term is not defined within the HTSUS, then the common and commercial meaning may be determined by consulting dictionaries to ascertain its meaning. The Merriam-Webster Dictionary defines “minor” as “inferior in importance, size, or degree: comparatively unimportant.” The Cambridge Dictionary defines “minor” as “having little importance, influence, or effect, especially when compared with other things of the same type.” Dictionary.com defines “minor” as “lesser, as in size, extent, or importance, or being or noting the lesser of two” and “not serious, important,
etc.” The above dictionary definitions demonstrate that the term “minor” describes objects that are inferior in size, importance, and effect. Consistent with these definitions, we conclude that in reference to fish bones, “minor bones” are bones that are of little significance due to their size. The referenced definitions are also consistent with EN 03.04, which refers to “minor bones” as “bones which may not have been completely removed,” thereby describing them as small fractions of bones left over after bone removal.
EN 03.04 defines “fish fillets” and “other fish meat” as fish meat from which the bones have been removed, with the exception of minor bones which have not been completely removed. Upon review, we find that the frozen buri fish collar at issue in NY N306583, is not “fish fillet” or “other fish meat,” as defined in EN 03.04. In contrast, the manufacturing process for the frozen buri fish collar at issue is described in relevant part as follows: the fish will be beheaded, eviscerated, the collar retrieved, rinsed, cooled, wiped dry, packaged, vacuum sealed, labeled, measured and frozen. Based on the description of the manufacturing process, we find that the frozen buri fish collar at issue contains all of its bones as bone removal is not identified as part of the manufacturing process. Because the bones are not removed, the “minor bone” exception is not applicable. Therefore, we conclude that the frozen buri fish collar is not “fish fillet” or “other fish meat,” within the meaning of EN 03.04. As such, it is not classified in heading 0304, HTSUS, which provides for “Fish fillets and other fish meat (whether or not minced), fresh, chilled or frozen.”
Heading 0303, HTSUS, provides for “Fish, frozen, excluding fish fillets and other fish meat of heading 0304.” EN 03.03 provides that the provisions of EN 03.02 apply, mutatis mutandis, to the products of this heading. In relevant part, EN 03.02 provides that the heading covers fish, whether whole, headless, gutted, or in cuts containing bones or cartilage, but does not include fish fillets and other fish meat of heading 03.04. Based on the described manufacturing process, the buri fish collar at issue is frozen, beheaded, eviscerated, and contains bones. As such, it meets the relevant terms of EN 03.02 and EN 03.03, and is provided for in heading 0303, HTSUS. Specifically, the buri fish collar is classified under subheading 0303.89.0080, HTSUSA, which provides for “Fish, frozen, excluding fish fillets and other fish meat of heading 0304: Other fish, excluding edible fish offal of subheadings 0303.91 to 0303.99: Other: Other.”
HOLDING:
Under the authority of GRIs 1 and 6, the frozen buri fish collar is classified under heading 0303, HTSUS, and specifically under subheading 0303.89.0080, HTSUSA, which provides for “Fish, frozen, excluding fish fillets and other fish meat of heading 0304: Other fish, excluding edible fish offal of subheadings 0303.91 to 0303.99: Other: Other.” The column one general rate of duty is Free.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at https://hts.usitc.gov/.
EFFECT ON OTHER RULINGS:
NY N306583, dated November 18, 2019, is hereby REVOKED.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division