OT:RR:CTF:FTM H338585 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. 4601-20-122648; Application of Section
301 Trade Remedy Duties on Certain Tilapia Fillets.
Dear Center Director:
This is our decision regarding an Application for Further Review (“AFR”) of Protest No.
4601-20-122648, filed by counsel on behalf of Slade Gorton & Co. Inc. (“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 nineteen entries of the subject tilapia fillets,
entered between May 27, 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 claims 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.
Moreover, Protestant also claims that because 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. Specifically, Protestant argues that none of the means
required by General Note 3(f)(i), HTSUS, were available at the time of importation. Protestant
explained that 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 further claims 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. Protestant argues that the shipments at
issue meet the terms of (A) because the three-five ounce fillets are valued less than five-seven
ounce fillets and are valued less per pound than boxes of individual three, four, and five ounce
fillets. Protestant further claims that the shipments meet (B) because they cannot be segregated
long past importation. Finally, Protestant claims 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 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 for each box of three to five ounce fillets to the extent the
1
Although the entries in question also contained five to seven ounce frozen tilapia fillets, as well as seven to nine
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 and seven
to nine ounce fillets.
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contents of those boxes could reasonably be demonstrated. In this regard, Protestant claims 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. According to Protestant, that smaller
fillets are preferred by vendors, processors, and purchasers because they are the least expensive
and allow for a lower food cost per portion when served. This practice, as described by Protestant,
can also be demonstrated in its inspection reports, reflecting the fact that weight and quality
inspections are conducted by the Protestant both pre- and post-importation on an intermittent basis.
Specifically, Protestant asserts that one percent of the merchandise contained in an incoming
shipment is sampled, providing copies of three post importation reports in support. One of the
post importation reports relates to one of the entries at issue in the subject Protest, showing that
three boxes were pulled for inspection and that the average weight of the fillets contained in each
of the boxes was 3.75 ounces, 3.98 ounces, and 3.93 ounces. The two other post importation
inspection reports, while showing that the tested fillets weighed on average under 115 grams, did
not cover the entries at issue in the subject Protest.
Following the meeting with CBP on October 25, 2024, Protestant further provided two
affidavits from the vendors associated with the merchandise at issue in the subject Protest. Both
affidavits stated 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. Of the five reports, four did not relate to any of the shipments
at issue in the subject Protest. Only one report related to one of the entries at issue and was the
same as provided with the initial Protest, discussed above.
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 October 21, 2020,
within 180 days of liquidation, pursuant to 19 U.S.C. § 1514(c)(3). Further Review of Protest No.
4601-20-122648 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.) 2
* * *
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) 3
* * *
2
Subheading 0304.61.00 is subject to the general, column one rate of duty of “Free.”
3
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%.”
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 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)
4
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].”
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* * *
General Note 3(f), HTSUS, provides:
(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
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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
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
between June 18, 2019, and July 1, 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 item. 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, then 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 long past importation and that the commingling was not intended to avoid the payment
of lawful duties, we find that the information concerning the value of the commingled fillets,
presented by the Protestant, is insufficient. General Note 3(f)(iv) requires satisfactory proof that
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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 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.
As discussed above, although several post-importation reports were submitted with the
Protest and following the October 25, 2024, meeting with the Protestant, only one of the reports
related to one of the entries at issue in the Protest. However, upon review of the post importation
report along with the commercial invoice for the referenced entry, we noted that the three ten pound
boxes tested amounted to well under 1% of the imported boxes containing three to five ounce
fillets. Finally, with regard to the two vendor affidavits provided by the Protestant, we note that
while both affidavits stated that the majority of the fillets packed in boxes containing three to five
ounce tilapia fillets weigh four ounces or less, neither affidavit included any references to the
specific entries at issue in the subject Protest. Therefore, we find that the affidavits are also 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 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.
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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
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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