OT:RR:CTF:FTM H338586 TSM
Center Director
U.S. Customs and Border Protection
Agriculture and Prepared Products Center
237 West Service Road
Champlain, New York 12919
Attn: Ethan Kemler, Import Specialist
Re: Application for Further Review of Protest No. 2704-20-147302; Tariff Classification of
Frozen Tilapia Fillets; Application of Section 301 China Products Trade Remedy
Dear Center Director:
This is our decision regarding an Application for Further Review (“AFR”) of Protest No.
2704-20-147302, filed by counsel on behalf of Monarch Trading, LLC (“Protestant”). The
Protest and AFR concern the classification under the Harmonized Tariff Schedule of the United
States (“HTSUS”) of certain frozen tilapia fillets. 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 March 31, 2025. Following the meeting, Protestant filed supplemental information
with this office.
FACTS:
The merchandise at issue consists of three, four, and five ounce individually quick frozen
tilapia fillets. The Protest covers three entries of the subject tilapia fillets, which were made at
the port of Los Angeles between June 18, 2019, and July 1, 2019, and originally liquidated
between May 15, 2020, and May 29, 2020, 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 subject three and four ounce frozen tilapia fillets 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. Protestant argues that the portion of each entry relating to the tilapia fillets
weighing three and four ounces is clearly identified by the vendors’ commercial invoices, as
confirmed by the processing line inspection, during which the fillets within individual boxes are
weighed at random prior to them being glazed. The inspection reports reflect the number of
tilapia fillets weighing greater than or less than 115 grams.
Protestant further claims that the requirement subjecting commingled fillets to the highest
rate of duty does not apply because the quantity and value of the three, four, and five ounce
fillets can be readily ascertained by the methods specified in General Note 3(f), HTSUS, which
are (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. Specifically, Protestant
contends that the portion of each entry relating to the tilapia fillets weighing three and four
ounces is clearly identified by the vendors’ commercial invoices and processing line inspection
reports showing that over 70% of the inspected fillets weigh less than 115 grams. Based on the
above arguments, Protestant alleges that the evidence provided at entry demonstrates that CBP
did not follow the instructions set forth in General Note 3(f) providing for an exception to the
commingling rule. Moreover, further claiming that CBP has recognized the ability to segregate
goods in even more challenging circumstances, Protestant referenced Headquarters Ruling Letter
(“HQ”) 225891, dated February 23, 1996, and HQ 563310, dated May 19, 2006.
Commercial invoices, packing lists, and inspection reports identifying each one of the
three entries at issue, were provided as exhibits to the Protest. With regard to the invoices, we
note that while the ones filed with the Protest identified the exact quantities of tilapia fillets
weighing three and four ounces, the original invoices filed with the entries simply indicated
quantities of three to five ounce fillets together as one line items.
Following the meeting on March 31, 2025, in response to CBP’s follow up inquiry
concerning the above-referenced discrepancy between the original invoices and the revised
invoices filed with the Protest, the Protestant’s counsel stated that prior to the issuance of the
section 301 exclusion for tilapia filets less than 115 grams, it was the supplier’s and the
industry’s practice not to delineate the weight of the tilapia filets as it was irrelevant for duty
purposes. Once it became relevant to delineate the portion of the shipments weighing less than
115 grams, additional invoices from the suppliers were obtained. Counsel also claimed that the
tilapia fillets present in greatest quantity is under 115 grams based on the revised invoices (66%
of imported fillets) or inspection reports (75% of imported fillets).
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ISSUE:
Whether the subject quick frozen three and four ounce tilapia fillets are 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.
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 11,
2020, within 180 days of liquidation, pursuant to 19 U.S.C. 1514(c)(3). Further Review of
Protest No. 2704-20-147302 is properly accorded pursuant to 19 CFR § 174.24(b), as the
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, the Protestant alleged that the decision to liquidate under
subheading 9903.88.03 was inconsistent with the scope of an exclusion to the China 301 trade
remedy, and in particular the requirement that the products under the exclusion be “tilapias,
frozen, each weighing not more than 115 g.” 1
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,
1
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. 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).
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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
* * *
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
* * *
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
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 (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:
(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
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the supervising customs officers shall be reimbursed to the Government by the
consignee under such regulations as the Secretary of the Treasury may prescribe.
(iii) The foregoing provisions of subdivision (f) of this note do not apply with respect
to any part of a shipment if the consignee or his agent furnishes, in such time and
manner as may be prescribed by regulations of the Secretary of the Treasury,
satisfactory proof -
(A) that such part (1) is commercially negligible, (2) is not capable of segregation
without excessive cost and (3) will not be segregated prior to its use in a
manufacturing process or otherwise, and
(B) that the commingling was not intended to avoid the payment of lawful duties.
Any goods with respect to which such proof is furnished shall be considered for
all customs purposes as a part of the goods, subject to the next lower rate of duty,
with which they are commingled.
(iv) The foregoing provisions of subdivision (f) of this note do not apply with respect
to any shipment if the consignee or his agent shall furnish, in such time and
manner as may be prescribed by regulations of the Secretary of the Treasury,
satisfactory proof –
(A) that the value of the commingled goods is less than the aggregate value would
be if the shipment were segregated;
(B) that 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) that the commingling was not intended to avoid the payment of lawful duties.
Any goods with respect to which such proof is furnished shall be considered for
all customs purposes to be dutiable at the rate applicable to the material present in
greater quantity than any other material.
* * *
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.
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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 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 filed at the time of entry, we have noted that the
specific quantities of the three, four, and five ounce fillets have not been identified. As
explained above, while the invoices filed with the Protest identified the exact quantities of tilapia
fillets weighing three, four, and five ounces, the original invoices filed with the entries simply
indicated 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.
Based on the record, we find that the frozen three, four, and five ounce tilapia fillets
qualify as commingled within the meaning of General Note 3(f), HTSUS. While they are goods
subject to different rates of duty, the record shows that the fillets were packed together or
comingled and that the quantity or value of the three, four, and five ounce fillets was not readily
ascertainable. Although the Protestant argues that the portion of each entry relating to the tilapia
fillets weighing three and four ounces is clearly identified by the vendor’s commercial invoices
and processing line inspection, we disagree. Consistent with General Note 3(f)(i), the quantity or
value of each class of commingled goods can be ascertained by one 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. We note that while (A) and (C) are not applicable, as sampling cannot be performed after
liquidation of the shipment and no evidence of commercial settlement tests was presented, we
look at whether the quantity or value of the commingled tilapia fillets can be ascertained by
verification of packing lists or other documents filed at the time of entry. In this regard, we note
that while commercial invoices identifying the quantity and value of three, four, and five ounce
tilapia fillets were presented with the Protest, no such invoices or other documents were filed at
the time of entry. As noted above, the original invoices filed with the entries simply indicated
quantities of three to five ounce fillets together as one line item. With regard to the processing
line inspection reports, we note that these reports were also filed with the Protest. Moreover,
review of the reports showed only four ten pound boxes from each entry were inspected,
amounting to well under 1% of all imported boxes containing frozen tilapia fillets.
In its Protest, Protestant also claimed that CBP did not properly apply the General Note
3(f) exception to the comingling rule. In this regard, we note that General Note 3(f)(iii) and (iv)
describe situations in which the provisions of General Note 3(f)(i) and (ii) do not apply.
Specifically, pursuant to General Note 3(f)(iii), the referenced provisions do not apply to any part
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of the shipment upon proof that such part is commercially negligible, is not capable of
segregation without excessive cost and will not be segregated prior to its use in a manufacturing
process or otherwise, and that the commingling was not intended to avoid the payment of lawful
duties. Any goods with respect to which such proof is furnished are subject to the lower rate of
duty with which they are commingled. Upon review, we agree that the tilapia fillets weighing
115 grams or less are not capable of segregation post-liquidation of the entries, and that the
commingling was not intended to avoid the payment of lawful duties given the retroactive nature
of the exclusion covering frozen tilapia fillets weighing not more than 115 grams. However, the
commercial invoices filed with the entries simply indicated quantities of three to five ounce
fillets together as one line items. Therefore, no proof concerning the quantities of tilapia fillets
weighing 115 grams or less, and those weighing more than 115 grams, was presented at the time
of entry.
General Note 3(f)(iv) provides in relevant part that a duty “at the rate applicable to the
material present in greater quantity than any other material” applies upon furnishing satisfactory
proof that the value of the commingled goods is less than the aggregate value would be if the
shipment were segregated; 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 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 proof concerning the value of the commingled fillets, presented by the Protestant, to be
insufficient. While 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, the
original invoices and other documents filed with the entries simply indicated quantities of three
to five ounce fillets together as one line items. Accordingly, no evidence regarding the value of
the commingled fillets was provided at the time of entry of the tilapia fillets at issue in the
Protest.
Finally, we turn to the Protestant’s argument that CBP has recognized the ability to
segregate goods in even more challenging circumstances, such as those at issue in HQ 225891,
dated February 23, 1996, and HQ 563310, dated May 19, 2006. In relevant part, in HQ 225891
CBP considered whether an “average inventory” method proposed by the requester could be
used to segregate certain commingled oil or diesel fuel, if the quantities of dutiable and
nondutiable merchandise could be determined by the verification of packing lists or other
documents filed at the time of entry. CBP determined the proposal concerning entry
documentation to be sufficient, provided that, among other things, information concerning the
ratio or percentage, as well as the quantities, of nondutiable and dutiable petroleum was
contained in the invoices. In HQ 563310, CBP found in relevant part that similar to the
inventory method at issue in HQ 225891, an “averaging” method of accounting for the quantity
of dutiable and non-dutiable refrigerant could be used to segregate the refrigerant, provided that
sufficient records to support the calculations were maintained and presented. Upon review, we
find that the referenced rulings do not support a finding that segregation of imported tilapia
fillets would be appropriate in the absence of documents, filed at the time of entry, clearly
identifying the specific quantities of the three, four, and five ounce tilapia fillets at issue.
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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.
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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