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HQ 963149




December 18, 2000

CLA-2 RR:CR:GC 963149ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.9998

Port Director
U.S. Customs Service
1000 2nd Avenue
Suite 2100
Seattle, WA 98104-1049

RE.: Protest 3001-99-100142; Yellowfin Tuna Extract Powder; HQ 959191.

Dear Port Director:

The following is our decision on Protest 3001-99-100142, against your classification of a product described as Yellowfin Tuna Extract Powder under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The product under protest is described as being a Yellowfin Tuna extract powder produced from fresh, frozen cooked tuna which has been modified by processing by enzymes, plus corn starch and salt. The manufacturing process can be summarized as follows: small pieces of tuna flesh (tuna flakes) are cooked in water to extract flavor constituents. A food-grade enzyme is then added to the mixture which is further heated for hydrolyses of the protein (i.e., the protein is partially broken down to peptides). After this, the mixture is put through a filter with a mesh size of 50 microns. When the filtered solution has cooled slightly, natural cornstarch is added and the solution is reheated to inactivate the enzyme before further processing. Next, salt is mixed into the solution. Finally, it is dried and turned into powder form. Once the Yellowfin Tuna extract is in powder form, it is packed in 55-pound food grade paper bags which are placed within cardboard boxes for shipping. After importation, the product is used in human and pet food products as a flavor additive or enhancer. The goods under protest were entered on February 6, 1998, and the entry was liquidated on December 18, 1998, under subheading 2106.90.9998, HTSUS, which provides for "food preparations, not otherwise specified or included, other." A timely protest was filed on March 18, 1999, requesting reliquidation of the goods under subheading 0410.00.00, HTSUS, as "edible products of animal origin, not elsewhere specified or included."

In preparing this letter, we have considered the supplemental submission of November 29, 2000, filed by counsel for the protestant, as well as arguments presented in telephonic conversations.

ISSUE:

Whether "Yellowfin Tuna extract powder" is classified as an article of animal origin or a food preparation?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, 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 in order.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, 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 HTSUS subheadings under consideration are as follows:

0410.00.00 Edible products of animal origin, not elsewhere specified or included.

2106.00.00 Food preparations not elsewhere specified or included:

2106.90 Other:

Other:
Other:
Other:
Other:
2106.90.99 Other:
2106.90.9998 Other.

Protestant contends that the Yellowfin Tuna extract powder is classified in the subheading 0410.00.00, HTSUS, which provides for edible products of animal origin, not elsewhere specified or included. In support of this contention, he makes two main arguments: First, that the merchandise is excluded from Chapter 21 by virtue of Chapter Note 1(e) to that Chapter; and, second, that, pursuant to GRI 3(b), subheading 0410.00.00, HTSUS, covering "edible products of animal origin," describes the article more specifically than subheading 2106.90.9998, HTSUS, which provides for 'food preparations not elsewhere specified or included".

Chapter Note 1(e) to Chapter 21 provides, in pertinent part, as follows: "1. This chapter does not cover:

(e) Food preparations, other than the products described in heading 2103 or 2104, containing more than 20 percent by weight of sausage, meat, meat offal, blood, fish or crustaceans, molluscs or other aquatic invertebrates, or any combination thereof (chapter 16);"

The protestant contends that because the product contains the following ingredient percentages: 40% yellowfin tuna extract; 25% added salt; and 35% cornstarch, it exceeds the minimum amount of fish permitted by the Note for classification in chapter 21.

In support of his position, protestant cites the decision in Marcor Development Corporation v. United States, 926 F.Supp. 1124, 20 C.I.T. 538 (1996), which classified a shark cartilage protein preparation in heading 0410, HTSUS, as an edible preparation of animal origin. That decision hinged upon the procedures that were followed in the manufacture of the actual product. In Marcor, the end product was the result of the shredding of purified shark cartilage. The court determined this material was "fish" within the meaning of the HTSUS. Because the complete article contained between 52% and 60% by weight shredded shark cartilage (fish) which had been mixed with between 40% and 48% dextrin, the court also held that the article contained more than 20 % fish which was enough to exclude it from classification in chapter 21 by virtue of Chapter 21 Note 1(e).

However, we can distinguish the instant article from Marcor's shark cartilage by reviewing the methods used to achieve the two "fish" components. In Marcor, the raw shark fin cartilage was shredded, subjected to a protease which removed impurities such as ash. The purified cartilage then had an enzyme added to extract and concentrate the mucopolysaccharides. The cartilage was then deodorized, decolored and filtered. Dextrin, a drying agent was added and the product was then sterilized, dried, shredded and placed in drums for shipment.

The instant product begins with flaked Yellowfin Tuna flesh which is heated in water. A protease enzyme is then added and the mixture is heated for hydrolyses of the protein, i.e., the protein is partially broken down to peptides. The mixture is then passed through a filter mesh which removes particles larger than 50 microns (50 millionths of a meter or 0.00196 inches). The resulting broth is then alternately cooled and heated as natural cornstarch and salt are added. The final steps in making the product involve drying the material, granulizing it and packing it in 55 lb. bags for shipment. The final product contains 40% by weight chemically modified tuna extract, 35% cornstarch and 25% salt.

The protestant claims the product being classified contains tuna extract powder. The ENs to chapter 16, HTSUS, provide that extracts of fish are obtained by concentrating the water extracts of the flesh of herring or other fish (EN 16.03). Here, in addition to the water, the tuna has been further processed by enzyme treatment. The subsequent filtration procedure effectively removes from the preparation all particles of tuna flesh larger than 50 microns which might have remained after the enzyme heat treatment. Therefore, the resulting product cannot claim to "contain" tuna. What remains is some tuna protein and tuna flavor. To paraphrase the court in Marcor, 'the extent of the metamorphosis the Yellowfin tuna flesh has undergone by the time it reaches its final state, it can be no longer said that the protestant's product bears the essential characteristics or is even recognizable as Yellowfin tuna'.

In W.H. & L.D. Betz v. United States, 26 C.C.P.A. 399, C.A.D. 46, the court discussed classification of a product which had been processed from natural seaweed. In rejecting the claim that the article be classified as a "seaweeds * * * manufactured" the court noted that "A thing may be manufactured from a thing and not be that thing manufactured." Although this decision involved classification under the Tariff Schedules of the United States, which preceded the HTSUS, and the HTSUS, which went into effect January 1, 1989, is a new tariff system with rules of interpretation and application somewhat different from the TSUS, this decision has relevance. As noted in House Conference Report No. 100-576, dated April 20, 1998, on the Omnibus Trade and Competitiveness Act of 1988 (P.L. 100-418), decisions by the Customs Service and the courts interpreting nomenclature under the TSUS are not to be deemed dispositive in interpreting the HTSUS. Nevertheless, on a case-by-case basis prior decisions should be considered instructive in interpreting the HTSUS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTSUS.

The instant extract powder may start out from a mixture containing fish flesh, but, by the time the final product has been manufactured, none of the actual fish flesh remains and the product does not contain "fish". Therefore, since the extract powder contains no fish, the exclusion of Chapter Note 1(e) to Chapter 21 does not apply to the product.

While we believe that the instant product is classifiable under subheading 2106.90.9998 by application of GRI 1, and thus resort to GRI 3 is unnecessary, we will address protestant's argument that heading 0410, HTSUS, is more descriptive of the product, than heading 2106, HTSUS, and therefore, is correct for classification purposes. The ENs to heading 04.10 indicate the coverage of this heading is intended to include products of animal origin suitable for human consumption, not specified or included elsewhere in the Nomenclature. Exemplars of products covered by this heading are turtles' eggs and bird's nests. A review of the language of the ENs indicates that this heading is intended to cover articles of animal origin which retain the character of their animal origin. Turtle eggs are excluded when they have been processed for oil extraction. Birds' nests can be either untreated or cleaned to remove impurities, but not so processed that they would have lost their natural format entirely. To be eligible for classification in this heading, the nexus of a product to its animal origins must be more than molecular. The instant product has been so processed that it has lost its identity as an animal product and has become a chemical flavor enhancer – which is what it is used for.

In HQ 959191, dated November 23, 1998, Customs described the composition of various seafood extract powders as about 40% by weight of the chemically modified seafood extract, about 30% cornstarch, and 30% salt. In that ruling, Customs stated that "[w]e find that a salt content of approximately 30 percent is a large proportion, far in excess of an amount needed to 'ensure preservation'." Salt is a seasoning agent The Random House College Dictionary, Revised ed. (New York, Random House, Inc. 1980) defines the word "seasoning" as "salt or herb, spice or the like, for heightening or improving the flavor of food." The combination of the modified extract and the large amount of salt results in a blend with a dual function. It is a product that is both a flavoring agent and a seasoning. Combination products of this type have been excluded from classification in heading 0410, HTSUS, even when one of the components was, by itself, a product of that heading. HQ 959191 determined that because of the ingredients which had been mixed with the various seafood extract powders, the product was not classifiable in heading 0410, HTSUS. See also HQ 089038, dated July 31, 1991, which classified a mixture of natural honey, bee pollen and royal jelly, in any proportions, in heading 2106, HTSUS. In addressing the instant protest, we see no reason to disagree with the holding in HQ 959191.

Based on the above analysis, because the Yellowfin Tuna extract powder is not eligible for classification in heading 0410, HTSUS, as an edible product of animal origin, and since fish does not constitute over 20% of its weight, it is classified, under GRI 1, in heading 2106, HTSUS, as a food preparation, not elsewhere specified or included.

HOLDING:

The product described as Yellowfin Tuna extract powder is classified in subheading 2106.90.9998, HTSUS, which provides for food preparations, not elsewhere specified or included; other; other; other; other; other; other; other.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director

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