OT:RR:CTF:FTM H338459 TSM
Center Director
U.S. Customs and Border Protection
Agriculture and Prepared Products Center
237 West Service Road
Champlain, New York 12919
Attn: Michael Piech, Supervisory Import Specialist
James D. Bagwell, Import Specialist
Cynthia Carrigan, Import Specialist
Re: Application for Further Review of Protest No. 4601-20-123529; Application of Section
301 Trade Remedy Duties on Certain Tilapia Fillets
Dear Center Director:
This letter is in regards to the Application for Further Review (“AFR”) of Protest No. 4601-
20-123529, filed by counsel on behalf of Conrad Sales LLC d/b/a Bayhill Seafood LLC
(“Protestant”). The protest and AFR concern the tariff classification of tilapia fillets under the
Harmonized Tariff Schedule of the United States (“HTSUS”) and the assessment of duties pursuant
to Section 301(b) of the Trade Act of 1974 (“Section 301”). The AFR was forwarded to this office
for consideration. No sample was provided for examination.
Pursuant to a request from the Protestant, a meeting was held with the Protestant’s counsel
on October 25, 2024. Following the meeting, on November 15, 2024, Protestant filed a
supplemental submission with this office.
FACTS:
The merchandise at issue consists of three to five ounce individually frozen tilapia fillets,
packed in ten pound boxes. 1 The Protest covers two entries of the subject tilapia fillets, entered
on August 22, 2019 and October 23, 2019, under heading 0304, HTSUS, specifically subheading
0304.61.00, HTSUS, which provides for “Fish fillets and other fish meat (whether or not minced),
fresh, chilled or frozen: Frozen fillets of tilapias (Oreochromis spp.), catfish (Pangasius spp.,
Silurus spp., Clarias spp., Ictalurus spp.), carp (Cyprinus spp., Carassius spp., Ctenopharyngodon
idellus, Hypophthalmichthys spp., Cirrhinus spp., Mylopharyngodon piceus, Catla catla, Labeo
spp., Osteochilus hasselti, Leptobarbushoeveni, Megalobrama spp.), eels (Anguilla spp.), Nile
perch (Lates niloticus) and snakeheads (Channa spp.): Tilapias (Oreochromis spp.).” As products
of China, the subject merchandise was also subject to additional ad valorem duties pursuant to
U.S. Note 20 to Subchapter III, Chapter 99 (subheading 9903.88.03, HTSUS).
Protestant claimed that the frozen tilapia fillets at issue are not subject to Section 301 duties
pursuant to U.S. Note 20(vv)(2) to Chapter 99, HTSUS, which excludes frozen tilapias weighing
not more than 115 grams from the additional duties imposed by heading 9903.88.03, HTSUS.
According to Protestant, since the exclusion did not exist at the time of importation, but was
applied retroactively after the importation, no tilapia fillets were commingled within the meaning
of General Note 3(f)(i), HTSUS. Moreover, Protestant argued that none of the means required by
General Note 3(f)(i), HTSUS, were available at the time of importation. For instance, sampling,
packing lists, and other commercial documents did not reflect the relative weights to benefit from
a yet unknown exclusion and commercial settlement tests were not applicable.
Protestant contends that General Note 3(f)(iv) provides the applicable exclusion from
Section 301 duties to the entirety of three-five ounce fillet boxes, based on satisfactory proof that:
(A) the value of the commingled goods is less than the aggregate value would be if the shipment
were segregated; (B) the shipment is not capable of segregation without excessive cost and will
not be segregated prior to its use in a manufacturing process or otherwise; and (C) the commingling
was not intended to avoid the payment of lawful duties. The shipments at issue are said to meet
the terms of (A) because the three to five ounce fillets are valued less than five to seven ounce
fillets, and are valued less per pound than boxes of individual three, four, and five ounce fillets. 2
Protestant further claimed that the shipments meet (B) because they cannot be segregated long past
importation. Finally, Protestant claimed that the shipments meet (C) because commingling
different size ranges is industry standard, which has been used for decades before the above-
discussed exclusion from Section 301 duties was granted for frozen tilapia fillets weighing not
more than 115 grams. In addition, Protestant alleged that the three and four ounce fillets commonly
1
Although the entries in question also contained five to seven ounce frozen tilapia fillets, we note that only frozen
tilapia fillets weighing three to five ounces are at issue in the current Protest. The three to five ounce fillets are not
packed in the same boxes as the five to seven ounce fillets.
2
Consistent with the commercial invoice and packing list for one of the entries, the price of the five to seven ounce
fillets is higher per pound than the price of the three to five ounce fillets per pound. For the other entry, the price of
the three to five ounce fillets is higher per pound than the price of the five to seven ounce fillets. However, Protestant
explained that the price difference is attributable to the fact that the three to five ounce fillets in the second entry are
deep skinned whereas the five to seven ounce fillets are shallow skinned, and that deep skinned fillets are more
expensive than shallow skinned fillets.
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make up the majority of fillets in a three to five ounce fillet box. Protestant alleged that because
three and four ounce fillets make up the majority of fillets in each three to five ounce box, the free
rate of duty is applicable to all three to five boxes of tilapia fillets at issue in the Protest.
In the event of CBP’s disagreement with the claim that General Note 3(f)(iv) provides an
exclusion from 301 duties to all boxes containing three to five ounce frozen tilapia fillets,
Protestant requested a partial refund of two-thirds of the Section 301 duties paid for each box of
three to five ounce fillets to the extent the contents of those boxes could reasonably be
demonstrated. In this regard, Protestant claimed that the majority of fillets in the three to five
ounce boxes weigh not more than 115 grams, because it is a matter of industry practice and
consumer preference. In addition, while acknowledging that “inspection reports are not available
for all shipments” and that “some boxes may contain fillets over 4.06 ounces,” Protestant provided
a copy of an inspection report showing that certain boxes of tilapia fillets contained fillets weighing
under four ounces on average. Upon review, no connection between the fillets at issue in the report
and the fillets at issue in the subject Protest was established.
Following the meeting with CBP on October 25, 2024, Protestant further provided an
affidavit from the vendor associated with the merchandise at issue in the subject Protest, stating
that the majority of the fillets packed in boxes containing three to five ounce tilapia fillets weigh
four ounces or less, consistent with third-party inspection reports. In addition, Protestant provided
five post importation third-party reports, stating that the average weight of the tested fillets is four
ounces or less. However, none of the reports related to the entries at issue in the subject Protest.
ISSUE:
Whether the frozen tilapia fillets at issue in the subject Protest are eligible for the Section
301 trade remedy exclusion provided for in U.S. Note 20(vv)(2) to Chapter 99, HTSUS, and
subheading 9903.88.43, HTSUS.
LAW AND ANALYSIS:
A decision on classification and the rate and amount of duties chargeable is a protestable
matter under 19 U.S.C. § 1514(a)(2). The subject protest was timely filed on November 20, 2020,
within 180 days of liquidation, pursuant to 19 U.S.C. § 1514(c)(3). Further Review of protest no.
4601-20-123529 is properly accorded pursuant to 19 C.F.R. § 174.24(b), as Protestant has alleged
that the decision against which the protest was filed involves questions of law and fact that have
not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts.
Namely, Protestant alleged that the decision to liquidate under subheading 9903.88.03, HTSUS,
was inconsistent with the scope of the exclusion from Section 301 tariffs on imports from China,
and in particular the requirement that the products under the exclusion be “tilapias, frozen, each
weighing not more than 115 g.”
Effective with respect to goods entered for consumption, or withdrawn from warehouse for
consumption on or after September 24, 2018, the Office of the United States Trade Representative
(“USTR”) imposed additional 10 percent duties on goods of China classified in certain HTSUS
provisions, including on frozen tilapia fillets of subheading 0304.61.00, HTSUS. See 83 Fed. Reg.
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47974, 48008 (Sept. 21, 2018), as modified by 83 Fed. Reg. 49153 (Sept. 28, 2018). Effective
with respect to goods entered for consumption, or withdrawn from warehouse for consumption on
or after May 10, 2019, the additional duties were increased to 25 percent. See 84 Fed. Reg. 20459
(May 9, 2019). In a Federal Register Notice issued on March 26, 2020, USTR announced, in part,
a list of products that are excluded from the additional duties imposed by subheading 9903.88.03,
HTSUS, for products that are entered for consumption, or withdrawn from warehouse for
consumption, on or after September 24, 2018, until August 7, 2020. See 85 Fed. Reg. 17158,
17160 (March 26, 2020). Included in that list of excluded products was the following: “Tilapias,
frozen, each weighing not more than 115 g (described in statistical reporting number
0304.61.0000),” which was added as U.S. Note 20(vv)(2).
Classification under the HTSUS is in accordance with the General Rules of Interpretation
(“GRIs”). GRI 1 provides that the classification of goods will be determined according to the
terms of the headings of the tariff schedule and any relative section or chapter notes. If 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 will then be applied in order.
The 2019 HTSUS provisions under consideration are as follows:
0304 Fish fillets and other fish meat (whether or not minced), fresh, chilled or frozen:
* * *
Frozen fillets of tilapias (Oreochromis spp.), catfish (Pangasius spp., Silurus spp.,
Clarias spp., Ictalurus spp.), carp (Cyprinus spp., Carassius spp.,
Ctenopharyngodon idellus, Hypophthalmichthys spp., Cirrhinus spp.,
Mylopharyngodon piceus, Catla catla, Labeo spp., Osteochilus hasselti,
Leptobarbushoeveni, Megalobrama spp.), eels (Anguilla spp.), Nile perch (Lates
niloticus) and snakeheads (Channa spp.)
0304.61.00 Tilapias (Oreochromis spp.) 3
9903.88.03 Except as provided in heading … 9903.88.43 … articles the product of China, as
provided for in U.S. note 20(e) to this subchapter and as provided for in the
subheadings enumerated in U.S. note 20(f) 4
* * *
9903.88.43 Articles the product of China, as provided for in U.S. note 20(vv) to this subchapter,
each covered by an exclusion granted by the U.S. Trade Representative 5
3
Subheading 0304.61.00 is subject to the general, column one rate of duty of “Free.”
4
Subheading 9903.88.03 is subject to the general, column one rate of duty of “The duty provided in applicable
subheading [0304.61.00] + 25%.”
5
Subheading 9903.88.43 is subject to the general, column one rate of duty of “The duty provided in the applicable
subheading [0304.61.00].”
4
* * *
U.S. Note 20(e) to Subchapter III of Chapter 99, HTSUS, provides in relevant part:
For the purposes of heading 9903.88.03, products of China, as provided for in this
note, shall be subject to an additional 25 percent ad valorem rate of duty. The
products of China that are subject to an additional 25 percent ad valorem rate of
duty under heading 9903.88.03 are products of China that are classified in the
subheadings enumerated in U.S. note 20(f) to subchapter III. All products of China
that are classified in the subheadings enumerated in U.S. note 20(f) to subchapter
III are subject to the additional 25 percent ad valorem rate of duty imposed by
heading 9903.88.03, except products of China granted an exclusion by the U.S.
Trade Representative and provided for in … (11) heading 9903.88.43 and U.S. note
20(vv) to subchapter III of chapter 99
* * *
U.S. Note 20(f) to Subchapter III of Chapter 99, HTSUS, provides in relevant part:
Heading 9903.88.03 applies to all products of China that are classified in … 8-
digit subheading … [0304.61.00], except products of China granted an exclusion
by the U.S. Trade Representative and provided for in … (11) heading 9903.88.43
and U.S. note 20(vv) to subchapter III of chapter 99
* * *
U.S. Note 20 (vv) to Subchapter III of Chapter 99, HTSUS, provides in relevant part:
The U.S. Trade Representative determined to establish a process by which
particular products classified in heading 9903.88.03 and provided for in U.S. notes
20(e) and (f) to this subchapter could be excluded from the additional duties
imposed by heading 9903.88.03. See 83 Fed. Reg. 47974 (September 21, 2018)
and 84 Fed. Reg. 29576 (June 24, 2019). Pursuant to the product exclusion process,
the U.S. Trade Representative has determined that the additional duties provided
for in heading 9903.88.03 shall not apply to the following particular products,
which are provided for in the enumerated statistical reporting numbers:
* * *
(2) Tilapias, frozen, each weighing not more than 115 g (described in
statistical reporting number 0304.61.0000)
* * *
General Note 3(f), HTSUS, provides:
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(i) Whenever goods subject to different rates of duty are so packed together or
mingled that the quantity or value of each class of goods cannot be readily
ascertained by customs officers (without physical segregation of the shipment or
the contents of any entire package thereof), by one or more of the following means:
(A) sampling,
(B) verification of packing lists or other documents filed at the time of entry, or
(C) evidence showing performance of commercial settlement tests generally
accepted in the trade and filed in such time and manner as may be prescribed
by regulations of the Secretary of the Treasury,
the commingled goods shall be subject to the highest rate of duty applicable to any
part thereof unless the consignee or his agent segregates the goods pursuant to
subdivision (f)(ii) hereof.
(ii) Every segregation of goods made pursuant to subdivision (f) of this note shall be
accomplished by the consignee or his agent at the risk and expense of the consignee
within 30 days (unless the Secretary authorizes in writing a longer time) after the
date of personal delivery or mailing, by such employee as the Secretary of the
Treasury shall designate, of written notice to the consignee that the goods are
commingled and that the quantity or value of each class of goods cannot be readily
ascertained by customs officers. Every such segregation shall be accomplished
under customs supervision, and the compensation and expenses of the supervising
customs officers shall be reimbursed to the Government by the consignee under
such regulations as the Secretary of the Treasury may prescribe.
* * *
As an initial matter, we note that there is no dispute concerning CBP’s classification of the
subject merchandise under subheading 0304.61.00, HTSUS, which provides for “Fish fillets and
other fish meat (whether or not minced), fresh, chilled or frozen: Frozen fillets of tilapias
(Oreochromis spp.), catfish (Pangasius spp., Silurus spp., Clarias spp., Ictalurus spp.), carp
(Cyprinus spp., Carassius spp., Ctenopharyngodon idellus, Hypophthalmichthys spp., Cirrhinus
spp., Mylopharyngodon piceus, Catla catla, Labeo spp., Osteochilus hasselti, Leptobarbushoeveni,
Megalobrama spp.), eels (Anguilla spp.), Nile perch (Lates niloticus) and snakeheads (Channa
spp.): Tilapias (Oreochromis spp.).” We further note that consistent with Notes 20(e) and 20(f) to
Subchapter III of Chapter 99, HTSUS, frozen tilapia fillets of Chinese origin classified under
subheading 0304.61.00, HTSUS, are subject to an additional 25 percent ad valorem rate of duty
under subheading 9903.88.03, HTSUS. However, consistent with U.S. Note 20(vv)(2) to
Subchapter III of Chapter 99 and subheading 9903.88.43, HTSUS, the referenced additional duty
does not apply to frozen tilapias weighing not more than 115 grams. Moreover, according to the
Federal Register notice issued on March 26, 2020, the exclusion specifically covers frozen tilapias
weighing not more than 115 grams and entered for consumption, or withdrawn from warehouse
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for consumption, on or after September 24, 2018, until August 7, 2020. See 85 Fed. Reg. 17158,
17160 (March 26, 2020).
The frozen tilapia fillets at issue, weighing between three and five ounces, were entered on
August 22, 2019, and October 23, 2019, which is within the timeframe specified by the Federal
Register notice of March 26, 2020. See id. Accordingly, at issue is whether the imported fillets
weighing not more than 115 grams are eligible for the above-discussed exclusion from Section
301 duties. Upon review of the documents accompanying the entries at issue in the subject protest,
we have noted that the specific quantities of the three, four, and five ounce fillets have not been
identified. Instead, the commercial invoices accompanying the entries indicate quantities of three
to five ounce fillets together as one line items. Therefore, at issue is whether the tilapia fillets
weighing not more than 115 grams are “commingled merchandise” within the meaning of General
Note 3(f), HTSUS, and thus subject to Section 301 duties applicable to fillets weighing more than
115 grams. In this regard, we note that General Note 3(f), HTSUS, provides in relevant part that
whenever goods subject to different rates of duty are so packed together or mingled that the
quantity or value of each class of goods cannot be readily ascertained by sampling, verification of
packing lists or other documents, or evidence showing performance of commercial settlement
tests generally accepted in the trade, the commingled goods shall be subject to the highest rate of
duty applicable to any part thereof unless the consignee or his agent segregates the goods.
Based on the record, we find that the tilapia fillets at issue in the subject protest are
commingled within the meaning of General Note 3(f), HTSUS. While the fillets weighing not
more than 115 grams and the fillets weighing more than 115 grams are goods subject to different
rates of duty, the fillets were packed together or mingled so that the quantity or value of the fillets
could not be readily ascertained. As discussed above, the specific quantities of the three, four, and
five ounce fillets have not been identified in the commercial invoices and packing lists
accompanying the shipments. In this regard, Protestant claimed that no tilapia fillets were
commingled because neither sampling nor commercial documents could have reflected the relative
weights to benefit from a yet unknown exclusion. However, we note that the Federal Register
notice of March 26, 2020, retroactively applies the exclusion to frozen tilapia fillets weighing not
more than 115 grams, specifically covering the shipments entered between September 24, 2018,
and August 7, 2020. Therefore, to retroactively benefit from the referenced exclusion,
merchandise must not be commingled within the meaning of General Note 3(f), HTSUS.
In its protest, Protestant also claimed that General Note 3(f)(iv) provides the applicable
exclusion from 301 duties to the entirety of the three to five ounce fillet boxes. General Note
3(f)(iv) requires satisfactory proof that (A) the value of the commingled goods is less than the
aggregate value would be if the shipment were segregated; (B) the shipment is not capable of
segregation without excessive cost and will not be segregated prior to its use in a manufacturing
process or otherwise; and (C) the commingling was not intended to avoid the payment of lawful
duties. Upon review, while we agree that the merchandise at issue in the protest is not capable of
segregation and that the commingling was not intended to avoid the payment of lawful duties, we
find the information concerning the value of the commingled fillets, presented by the Protestant,
to be insufficient. General Note 3(f)(iv) requires satisfactory proof that the value of the
commingled goods is less than the aggregate value would be if the shipment were segregated.
However, consistent with the foregoing, segregation would be impossible because no information
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concerning the quantities of tilapia fillets weighing 115 grams or less, and the quantities of tilapia
fillets weighing over 115 grams, was presented. While commercial invoices were presented to
demonstrate that the fillets weighing between three and five ounces are valued less than per pound
that the fillets weighing between five and seven ounces, and less per pound than boxes of
individual three, four, and five ounce fillets, this information is not helpful in establishing the
quantities of the imported fillets weighing not more than 115 grams. First, we note that the fillets
weighing between five and seven ounces, which were packaged separately from the fillets
weighing between three and five ounces, are not at issue in this protest. Similarly, information
regarding the price per pound of the three, four, and five ounce fillets as compared to the price per
pound of commingled fillets weighing between three and five ounces is not instructive when the
specific weights and quantities of the fillets in the entries at issue are unknown. Although
Protestant claims that the majority of those fillets weigh not more than 115 grams because it is a
matter of industry practice and consumer preference, and because smaller fillets are preferred by
vendors, processors, and purchasers, this claim was not substantiated by any of the documents
provided. In this regard, we also note that although an inspection report was provided to
demonstrate that certain boxes of tilapia fillets contained fillets weighing under four ounces on
average, no connection was established between the fillets at issue in the report and the fillets at
issue in the subject protest.
As discussed above, although several post-importation reports were submitted with the
Protest and following the October 25, 2024, meeting with the Protestant, none of the reports related
to any of the entries at issue in the Protest. Moreover, with regard to the vendor affidavit provided
by the Protestant, we note that while the affidavit stated that the majority of the fillets packed in
boxes containing three to five ounce tilapia fillets weigh four ounces or less, it included no
references to the specific entries at issue in the subject Protest. Therefore, we find that the affidavit
is not sufficient to establish the specific quantities of the three, four, and five ounce fillets imported
in the entries at issue in the subject protest.
Based on the foregoing, we find that the frozen tilapia fillets under consideration are not
eligible for the Section 301 trade remedy exclusion provided for in U.S. Note 20(vv)(2) to Chapter
99, HTSUS, and subheading 9903.88.43, HTSUS.
HOLDING:
Products of China classified under subheading 0304.61.00, HTSUS, unless specifically
excluded, are subject to an additional 25% ad valorem rate of duty under secondary tariff number
9903.88.03, HTSUS, consistent with Notes 20(e) and 20(f) to Subchapter III of Chapter 99,
HTSUS.
The frozen tilapia fillets are not eligible for the exclusion provided for in secondary tariff
number 9903.88.43, HTSUS, Subchapter III to Chapter 99, U.S. Note 20(vv)(2), HTSUS.
You are instructed to DENY the protest.
You are instructed to notify the Protestant of this decision no later than 60 days from the
date of this decision. Any reliquidation of the entry or entries in accordance with the decision
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must be accomplished prior to this notification. Sixty days from the date of the decision, the Office
of Trade, Regulations and Rulings will make the decision available to CBP personnel and the
public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/, or other
methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division
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