OT:RR:CTF:FTM H293862 JER

Ms. Inna Bukach
Alex's Meat Distributors Corporation
5600 First Avenue, Bldg. A-35
Brooklyn, NY 11220

RE: Proposed Revocation of NY N290443; tariff classification of canned cod liver (in own oil)

Dear Ms. Bukach:

On October 13, 2017, U.S. Customs and Border Protection ("CBP") issued New York Ruling Letter ("NY") N290443 to Ms. Inna Bukach, of Alex's Meat Distributors Corporation ("Alex's Meats"), pertaining to the tariff classification under the Harmonized Tariff Schedule of the United States Annotated ("HTSUSA") of canned cod liver in its own oil imported from Latvia. Upon further review of additional information provided, CBP has since found NY N290443 to be incorrect. Accordingly, NY N290443 is hereby revoked.

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. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on June 10, 2020, in Volume 54, Number 22, of the Customs Bulletin. No comments were received in response to this notice.

FACTS:

In NY N290443, the canned cod liver was described as follows:

The subject merchandise is Canned Cod Liver (in own oil) composed of cod liver, oil and salt. The product will be packed 36 cans per carton with a total net weight of 300 grams (10.6 ounces) per each can. Canned Cod Liver (in own oil) will be sold to Russian ethnic markets in the United States.

On February 27, 2018, Ms. Bukach, of Alex's Meats, filed a request for reconsideration of NY N290443. According to February 2018 submission, the product is composed of 76.6% cod liver, 23% oil and 0.5% salt. The oil is said to be derived naturally (from the liver) during the sterilization process. In the submission, it is stated that once the can is sealed, the sterilization process starts. As the heat rises, the oil from the liver naturally comes out, filling out the can. The higher the temperature, the more oil is created and exudes from the liver.

In NY N290443, CBP classified the subject canned cod liver under subheading 1604.19.3200, HTSUSA, which provides for "Prepared or preserved fish; caviar and caviar substitutes, Fish, whole or in pieces, but not minced: Other (including yellowtail): In airtight containers: In oil: Other." It is now CBP's position that the canned cod liver in question is classified under subheading 1604.20.6090, HTSUSA, which provides for: "Prepared or preserved fish; caviar and caviar substitutes prepared from fish eggs: Other prepared or preserved fish: Other: Other, Other."

ISSUE:

Whether the subject canned cod liver is classified under subheading 1604.19, HTSUS, as other fish, whole or in pieces, or under subheading 1604.20, HTSUS, as other prepared or preserved fish parts.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation ("GRI"). 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 may then be applied.

Because the instant classification question occurs beyond the four-digit heading level, GRI 6 is implicated. GRI 6 states:

For legal purposes, the classification of goods in the subheading of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.

The 2020 HTSUS provisions under consideration are as follows:

1604 Prepared or preserved fish; caviar and caviar substitutes prepared from fish eggs:

Fish, whole or in pieces, but not minced:

1604.19 Other (including yellowtail):

In airtight containers:

In oil:

* * *

1604.19.32.00 Other...

* * *

1604.20 Other prepared or preserved fish:

Other:

1604.20.10 Pastes... Balls, cakes and puddings:

* * * 1604.20.60 Other...

Note 2 to Chapter 16, HTSUS, states, in relevant part, as follows:

Food preparations fall in this chapter provided that they contain more than 20 percent by weight of sausage, meat, meat offal, blood, fish or crustaceans, mollusks or other aquatic invertebrates, or any combination thereof.

The Harmonized Commodity Description and Coding System Explanatory Notes ("ENs") constitute the official interpretation of the Harmonized System 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 (August 23, 1989).

The EN for heading 1604, HTSUS, states, in pertinent part:

(3) Fish, and their parts, prepared or preserved by other processes not provided for in headings 03.02 to 03.02, e.g., fish fillets merely covered with batter or bread crumbs, prepared milt and livers, finely homogenised fish (see the General Explanatory Note to this Chapter, Item (4)) and pasteurised or sterilized fish. Prepared foods obtained by the swelling or roasting of cereals or cereal products (for example corn flakes). [Emphasis added].

* * *

In your request, you opine that the subject canned cod liver should be classified under subheading 1604.20, HTSUS, as "pudding" rather than subheading 1604.19.32, HTSUS. You assert that the cod liver is a liver mush and is often called "liver pudding" in certain cultures. You further argue that the cod liver is not a piece of a whole fish but is rather an organ. As such, you conclude that the cod liver cannot be properly classified under subheading 1604.19, HTSUS.

Based on its description, composition and by definition, the subject canned cod liver is a fish liver and is thus an organ of the cod fish. Fish liver like other viscera and refuse of fish are fish offal. Law Insider, available at, https://www.lawinsider.com/dictionary/fish-offal (last visited on February 18, 2020). Offal is simply the entrails, waste and organs of an animal or fish which often includes the tails, fins, ears and other refuse parts of an animal or fish. Cambridge Dictionary, Cambridge University Press (2020). https://dictionary.cambridge.org/us/dictionary/english/offal (last visited, February 18, 2020). Although, offal are often discarded after the animal or fish has been butchered, some offal are considered to be culinary delicacies in certain cultures. For tariff classification purposes, and to determine which of the two competing subheadings most accurately describes the subject canned cod liver, we must first examine the difference between pieces of fish and fish parts; and the distinction between fish meat and fish offal.

The HTSUS makes a clear distinction between whole fish or pieces of fish and edible fish offal and other waste parts of a fish. For example, Chapter 3 of the HTSUS, sets aside subheadings specifically for edible offal; while the other headings of Chapter 3 provide for whole fish or pieces of fish in various forms such as fileted, sliced, fresh, or frozen. In particular, subheadings 0302.91 to 0302.99, HTSUS, provide specifically for edible fish offal such as: fish livers, fish roe, milt, fins, heads, tails, and maws. Similarly, Chapter 16 of the HTSUS makes a distinction between prepared or preserved offal and prepared or preserved animal meat or fish meat. For example, Note 2 to Chapter 16, HTSUS, states, in part, that "Food preparations fall in this Chapter provided that they contain 20% by weight of sausage, meat, meat offal, blood, fish or crustaceans, mollusks, or other aquatic invertebrates, or any combination thereof." This distinction is further exemplified in heading 1602, HTSUS, which provides for "Other prepared or preserved meat, meat offal or blood." Likewise, subheading 1602.20, HTSUS, provides for "liver of any animal." In sum, the distinction referenced in Chapter 3 and Chapter 16, HTSUS, establishes that the Harmonized Tariff Schedule classifies fish (meat) and edible offal separately.

Heading 1604, HTSUS, is no different. Heading 1604, HTSUS, distinguishes between fish in whole form or in pieces from fish offal and fish roe. In particular, heading 1604, HTSUS, provides, for "Prepared or preserved fish; caviar and caviar substitutes from fish eggs" and thus separates fish meat from fish eggs (or fish roe). Moreover, heading 1604, HTSUS, is organized into three primary classes or categories of fish products at the six-digit level, which by their very structure separates fish meat products from fish offal and fish roe. These three primary classes or categories include: (1) "Fish, whole or in pieces, but not minced;" (2) "Other prepared or preserved fish;" and lastly, (3) "Caviar and caviar substitutes." Of these primary categories, only the first category of heading 1604, HTSUS, includes whole fish and pieces of fish. For example, subheadings 1604.11, HTSUS, thru 1604.19, HTSUS, which fall under the category of "Fish, whole or in pieces, but not minced," each lists a name or type of fish, e.g., Salmon (1604.11), Herring (1604.12), Tuna (1604.14), and so on. This category of subheadings does not include fish offal such as fish liver or fish roe. Instead, classification under subheadings 1604.11, HTSUS, thru 1604.19, HTSUS, requires, at a minimum, that the fish product be whole fish or pieces of fish (meat).

Furthermore, the ENs to heading 1604, HTSUS, demonstrate that parts of a fish, are distinct from fish (meat) in whole form or in pieces. In particular, EN 16.04 (3), provides, in relevant part, that the heading covers: "Fish and their parts, prepared or preserved...e.g., milt or livers...." Milt (which is the semen of a male fish) and liver (which is an internal organ of a fish), are parts of a fish rather than pieces of a fish.

Because the cod liver is an organ or edible offal of the cod fish, it is not classifiable as a whole fish or as a piece of a fish. Moreover, contrary to the decision in NY N290443, it is not classifiable under subheading 1604.19, HTSUS. Subheading 1604.19, HTSUS, is a basket provision for other types of "fish, whole or in pieces, but not minced" which are not enumerated eo nomine in the preceding subheadings of the first primary category of the 1604 subheadings. The subject canned cod liver is not a piece of fish meat and is not a whole fish but is rather a part of a fish (i.e., it is an organ). Accordingly, the subject canned cod liver cannot be classified under subheading 1604.19, HTSUS, as other fish in whole or in pieces.

We find that the subject canned cod liver falls into the second six-digit category of heading 1604, HTSUS, which provides for, "Other prepared or preserved fish." However, the subject canned cod liver is not a liver pudding or paste as you contend in your request for reconsideration. According to the description provided, the subject canned cod liver consists of the liver organ of a cod fish which has been preserved and canned in oil with salt and no other additional ingredients or preservatives. You argue that the cod liver is "liver pudding," noting that pudding is defined as: "Any of various dishes, sweet or savory, prepared by boiling or steaming, or from batter." Webster's New World Dictionary. However, unlike the fish balls, fish pudding or pastes of subheading 1604.20, HTSUS, the subject cod liver is not boiled, steamed, baked or prepared into a batter or paste. Likewise it is not mixed or combined with any other ingredients or other fish products; distinguishing it from other prepared fish products of subheading 1604.20, HTSUS. Accordingly, because of the absence of additional preparation, cooking, baking, or mixing with other ingredients, the subject canned cod liver cannot be classified under subheading 1604.20, HTSUS, as liver pudding or paste as you assert in your request. Instead, since the subject cod liver is preserved in oil and canned for consumption in a fresh state, it meets the description set out in EN 16.04 (3) as a preserved fish liver. More importantly, it satisfies the terms of subheading 1604.20.60, HTSUS, as "Other prepared or preserved fish."

HOLDING:

By application of GRI 1 and 6, we find that the canned cod liver is provided for in subheading 1604.20.6090, HTSUSA, which provides for: "Prepared or preserved fish; caviar and caviar substitutes prepared from fish eggs: Other prepared or preserved fish: Other: Other, Other." The 2020 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/current.

EFFECT ON OTHER RULINGS:

NY N290443, dated October 13, 2017, is REVOKED.

In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

Craig T. Clark, Director
Commercial and Trade Facilitation Division

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