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HQ 959149




August 9, 1996

CLA-2 RR:TC:FC 959149 JGH

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.99

Port Director
555 Battery St.
San Francisco, California 94111

RE: Decision on Application for Further Review of Protest No. 2809-95-100991, on the classification of a fish extract product from Japan.

Dear Sir:

This protest was filed at your port concerning certain entries of fish extract product made in November 1994 and January 1995, and liquidated in June 1995.

FACTS:

The products, Artificial Crab Extract, B-91002, Natural Crab Extract, C-76094, and Scallop Extract, C-49918, were entered under the provision for extract of fish or crustaceans, in subheading 1603.00.90, HTSUS. The entries were liquidated as an edible preparation, not elsewhere specified or included in subheading 2106.90.99, HTSUS.

ISSUE:

Classification of fish extract preparations under the HTSUS.

LAW AND ANALYSIS:

The Explanatory Notes to heading 1603 in defining fish extracts note that the may contain salt or other substances added in sufficient quantities to ensure their preservation. Fish extracts are prepared by concentrating water extracts of fish flesh and using salt as a preservative. A Customs laboratory analysis of a sample of a 1992 entry of artificial crab extract B-91002 disclosed that it contained 44 percent water, 9 percent protein, 15 percent fructose, 12 percent glucose and 10 percent maltose. It is claimed that although the fish extract products contain such sugars, the imports remain fish extracts. It is argued that the sugars act as preservatives; and that this is a new method of making fish extracts that are designed for addition to white fish, but that the resulting product is still a fish or crustacean extract.

Note 2, Chapter 16, HTSUS, requires that products classifiable in that chapter contain more than 20 percent by weight of meat or fish. The products in question at most contain about 10 percent fish. In addition when you add up the sugars involved: fructose, glucose and maltose, the total is about 37 percent, far in excess of an amount needed to act as a preservative. Thus, there is no basis for considering these products as extracts.

HOLDING:

The fish and crustacean food preparations as described above are classifiable as other food preparations not elsewhere specified or included, in subheading 2106.90.99, HTSUS.

You are directed to deny the protest in full. A copy of this notice should be furnished the protestant with the Form 19 Notice of Action.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-65, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be made prior to the mailing of the decision. Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Ruling Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,
John Durant, Director
Tariff Classification
Appeals Division

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