RR:CTF:FTM H328285 BJK
Mr. Jonathan Lieberman
New York Customs Brokers Inc.
148-02 Guy R. Brewer Boulevard
Jamaica, NY 11434
RE: Tariff classification of Frozen Cooked Seafood Protein Pasta Products
Dear Mr. Lieberman:
This is in response to your request, on behalf of Pescanova, Inc., dated September 22, 2022, for a binding ruling regarding the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of frozen cooked seafood protein pasta, marketed and sold in four different flavors (Plain, Garlic Basil, Tomato Basil, and Lemon Pepper). Your request was forwarded by the National Commodity Specialist Division to this office for a response.
FACTS:
The products at issue, frozen cooked seafood protein pasta, are primarily comprised of fish, specifically of Alaska Pollock. The product is sold in four different flavor profiles: Plain; Garlic Basil; Tomato Basil; and Lemon Pepper. The Plain item consists of 44% fish protein, by weight; the Garlic Basil consists of 46% fish protein, by weight; the Tomato Basil consists of 43% fish protein, by weight; and the Lemon Pepper consists of 48% fish protein, by weight.
The primary raw material, Alaska Pollock, is purchased in two forms—either as Surimi or as minced Alaska Pollock frozen blocks. Upon receipt by the processing facility, the frozen blocks are unwrapped, chopped, and transported on ice to a ball-cutter machine. Water, potato starch, powdered egg white, “natural flavors,” salt, vegetable oil, and smaller quantities of additional ingredients depending on its ultimate flavor-profile (i.e., Plain, Lemon Pepper, Garlic Basil, or Tomato Basil) are mixed with the frozen chopped blocks in a mixing tank to homogenize. The homogenized material is then conveyed into the ball-cutter and grinded to form dough. Once the dough is formed, it is emptied into a hopper and passed through a filter before it is extruded over a cooking belt in the shape of pasta. While on the cooking belt, it is cooked, or “gelified,” with steam. The extruded filaments are cut, and water is sprayed onto the filaments to prevent sticking. Then the filaments are placed back on the cooking belt where they are cooked/gelified a second time with steam. The filaments are then cooled with water while on the cooking belt. The cooled, extruded filaments are collected and transported on trays to be manually separated and packaged. Once packed, the packages pass through a metal detector and weight controller, and then are placed onto trolleys for pasteurization. The packages are pasteurized and cooled before being frozen in a freezing tunnel. Frozen packages are then placed into secondary packaging carton cases and palletized for transport. The product is kept frozen until delivered to the customer. The product is delivered frozen and must be kept refrigerated or frozen until use by the ultimate consumer. The products are perishable and must be kept frozen for storage prior to thawing and preparation.
ISSUE:
What is the tariff classification of the frozen cooked seafood protein pasta products?
LAW AND ANALYSIS:
Classification decisions under the HTSUS are made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods shall be determined 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 headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The 2022 HTSUS provisions under consideration are as follows:
1604 Prepared or preserved fish; caviar and caviar substitutes prepared from fish eggs:
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1902 Pasta, whether or not cooked or stuffed (with meat or other substances) or otherwise prepared, such as spaghetti, macaroni, noodles, lasagna, gnocchi, ravioli, cannelloni; couscous, whether or not prepared:
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2106 Food preparations not elsewhere specified or included
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Note 2 to Chapter 16 provides:
Food preparations fall in this chapter provided that they contain more than 20 percent by weight of sausage, meat, meat offal, blood, insects, fish or crustaceans, molluscs or other aquatic invertebrates, or any combination thereof. . . . These provisions do not apply to the stuffed products of heading 1902 or the preparations of heading 2103 or 2104.
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Note 1(a) to Chapter 19 provides:
This chapter does not cover:
Except in the case of stuffed products of heading 1902, food preparations containing more than 20 percent by weight of sausage, meat, meat offal, blood, insects, fish or crustaceans, molluscs or other aquatic invertebrates, or any combination thereof (chapter 16);
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Note 1(e) to Chapter 21 provides:
This chapter does not cover:
Food preparations, other than the products described in heading 2103 or 2104, containing more than 20 percent by weight of sausage, meat, meat offal, blood, insects, fish or crustaceans, molluscs or other aquatic invertebrates, or any combination thereof (chapter 16);
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In addition, in interpreting the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System may be utilized. The ENs to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
EN 19.02 states that:
The pasta of this heading are unfermented products made from semolinas or flours of wheat, maize, rice, potatoes, etc. These semolinas or flours (or intermixtures thereof) are first mixed with water and kneaded into a dough which may also incorporate other ingredients (e.g., very finely chopped vegetables, vegetable juice or purées, eggs, milk, gluten, diastases, vitamins, colouring matter, flavouring).
The doughs are then formed (e.g., by extrusion and cutting, by rolling and cutting, by pressing, by moulding or by agglomeration in rotating drums) into specific predetermined shapes (such as tubes, strips, filaments, cockleshells, beads, granules, stars, elbow bends, letters). In this process a small quantity of oil is sometimes added. These forms often give rise to the names of the finished products (e.g., macaroni, tagliatelle, spaghetti, noodles).
The products are usually dried before marketing to facilitate transport, storage and conservation; in this dried form, they are brittle. The heading also covers undried (i.e., moist or fresh) and frozen products, for example, fresh gnocchi and frozen ravioli.
The pasta of this heading may be cooked, stuffed with meat, fish, cheese or other substances in any proportion or otherwise prepared (e.g., as prepared dishes containing other ingredients such as vegetables, sauce, meat). Cooking serves to soften the pasta without changing its basic original form.
Stuffed pasta may be fully closed (for example, ravioli), open at the ends (for example, cannelloni) or layered, such as lasagne.
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Note 2 to Chapter 16, Note 1(a) to Chapter 19, and Note 1(e) to Chapter 21, HTSUS, state that products which contain more than 20 percent by weight of fish are classified in Chapter 16, HTSUS. However, the Notes state that stuffed pasta is always classified in heading 1902, HTSUS, regardless of the amount of fish used. We first consider whether the product at issue is classified as a pasta under heading 1902, HTSUS.
In Headquarters Ruling Letter (“HQ”) HQ H199095, dated December 5, 2019, and in HQ H316296, dated August 3, 2021, U.S. Customs and Border Protection (“CBP”) determined what the term “pasta” means for purposes of classification under heading 1902, HTSUS. In both rulings, CBP found that the ENs for heading 1902, HTSUS, explicitly provide that pastas classified under heading 1902, HTSUS, are “unfermented products made from semolinas or flours of wheat, maize, rice, potatoes, etc.” Most recently in HQ H316296, CBP examined whether “gluten-free pasta,” derived from soybean flour instead of traditional wheat, maize, rice, and/or potato flour, is a pasta under heading 1902, HTSUS. In ruling that gluten-free pasta is classified as a pasta under heading 1902, HTSUS, CBP found that gluten-free pasta is manufactured by processing soybeans into flour, processing the flour into dough, and processing the dough into pasta by means of extrusion, drying, cooling, and cutting. As a result, CBP determined that the manufacturing process and end-product of gluten-free pasta rendered it commercially interchangeable and virtually identical to traditional pasta made from traditional flour.
Unlike the gluten-free pasta in HQ H316296, the product subject to this ruling is not derived from semolinas or flours of any type contemplated by EN to heading 19.02. The manufacturing process of the product at issue involves mixing cut frozen blocks of Alaska Pollock or Surimi with water, potato starch, powdered egg white, “natural flavors,” salt, vegetable oil, and smaller quantities of additional ingredients depending on its flavor-profile until a homogenized material is formed. That material is then placed into a ball-cutter and grinded to form dough. Unlike traditional pastas or the gluten-free pasta in HQ H316296, in which processors take the dough and extrude, dry, cool, and cut it to form pasta, the product at issue here is a dough until it is extruded into filaments over a cooking belt where it is then cooked, or “gelified,” with steam. From delivery of the frozen blocks of Alaska Pollock or Surimi to the manufacturer through the gelification of the product on the cooking belt with steam, the product at issue is not processed into a flour which is then processed into a dough. Instead, the product is the result of mixing a series of frozen blocks of fish with other ingredients into a homogenized mixture that is formed into a dough for the purpose of extruding it into filaments on a cooking belt. In the absence of semolinas or flours, or a manufacturing process that renders the product first into a flour contemplated by EN 19.02 for further processing into pasta, we cannot classify this product as a pasta under heading 1902, HTSUS.
In turn, we consider whether the product at issue is classified as a prepared fish under heading 1604, HTSUS, or alternatively, a food preparation not elsewhere specified or included under heading 2106, HTSUS. If the product is not within the scope of Chapter 16, HTSUS, then it would fall within Chapter 21, HTSUS. At the outset, we note that Note 1(e) to Chapter 21 precludes classification for food preparations containing more than 20 percent by weight of fish. The Court of International Trade has determined “fish,” as used in Note 1(e) to Chapter 21, HTSUS, is defined broadly to include all parts, edible and inedible, of the fish and not merely “fish fillets.” See Marcor Dev. Corp. v. United States, 926 F. Supp. 1124, 1130; 20 C.I.T. 538, 541 (May 3, 1996). Here, the product at issue is the result of a mixture of frozen chopped Alaska Pollock or Surimi blocks with other ingredients processed into a dough that is then extruded into filaments, steamed, and then frozen. Despite this mixture, the fish content of the products, by weight, remains more than 20 percent for each flavor profile. Indeed, each flavor profile of the product at issue contains more than 40 percent, by weight, of fish. Consequently, this product cannot be classified under Chapter 21, HTSUS.
The product at issue falls within the scope of Chapter 16, HTSUS. Support for classification of this product under Chapter 16, HTSUS, can be found in both the Notes to Chapter 16 and in precedent established by the Court of International Trade. Note 2 to Chapter 16, HTSUS, plainly reads that “[f]ood preparations fall in this chapter provided that they contain more than 20 percent by weight of . . . fish or crustaceans, molluscs or other aquatic invertebrates, or any combination thereof.” The only exception to inclusion is for “stuffed products of heading 1902, HTSUS, or the preparations of heading 2103 or 2104, HTSUS.” As discussed above, this product cannot be classified as a pasta under heading 1902, HTSUS, and is not a sauce, condiment, seasoning, or mustard under heading 2103, HTSUS, or a soup, broth, or homogenized composite food under heading 2104, HTSUS. Moreover, the Court of International Trade in Marcor held that the term “fish” is to be defined broadly and is not limited to fish fillets. While the product at issue is processed such that the inclusion of fish is not readily identifiable to the naked eye, its composition of more than 40 percent fish shows that this is, indeed, a fish product. The product is marketed as a fish product in a pasta-like shape; must be kept frozen or refrigerated before use by the consumer, like a fish product; and is comprised, by weight, of more than 40 percent of Alaska Pollock or Surimi.
By applying GRI 1, the product at issue is therefore classified under heading 1604, HTSUS, as a “prepared or preserved fish” product. Specifically, classification of the products four flavor profiles are each under subheading 1604.20.6010, HTSUS, as “Prepared or preserved fish; caviar and caviar substitutes prepared from fish eggs: Other prepared or preserved fish: Other: Other: Pre-cooked and frozen.”
HOLDING:
By application of GRI 1, we find that the frozen cooked seafood protein pasta products are classified in heading 1604, HTSUS, and specifically in subheading 1604.20.6010, HTSUSA, which provides for “Prepared or preserved fish; caviar and caviar substitutes prepared from fish eggs: Other prepared or preserved fish: Other: Other: Pre-cooked and frozen.” The 2022 general, column one 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/current.
Sincerely,
Sarah Kafka, Chief Food, Textiles, and Marking Branch