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HQ 965056




November 20, 2001

CLA-2 RR:CR:GC 965056ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 1604

Mr. Jerry Barile
Import Operations Manager
All Nations Forwarding Import C., Inc.
One Cross Island Plaza
Jamaica, NY 11422

RE: Dried Mackerel, PD A83430 revoked.

Dear Mr. Barile:

In PD A83430, issued to you on behalf of Majestic Nagano, by the Port Director of Customs, Champlain, NY, on July 1, 1996, a product identified as dried horse mackerel was classified under subheading 1604.15.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for prepared or preserved fish ... whole or in pieces, but not minced: Mackerel.

We have reviewed that ruling and determined that the classification set forth is incorrect. However, because we do not have complete information regarding the duration and purpose of the cooking the fish undergoes, we are unable to provide the correct classification of the horse mackerel. The analysis set forth below provides our reasons for determining PD A83430 is in error. Should the importer desire a ruling on this product a new request containing all relevant facts about the product may be submitted to the Director, National Commodity Specialist Division, U.S. Customs, Attn: CIE/Ruling Request, One Penn Plaza, 10th Floor, New York, NY 10119.
.

Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed revocation of PD A83430 was published on October 17, 2001, in the Customs Bulletin, Volume 35, Number 42. No comments were received.

FACTS:

The product is described as dried horse mackerel, trachurus japonicus, which is cooked by boiling in hot water to 100 degrees centigrade and then dried with hot air. The product is then packaged in a cellophane bag.

ISSUE:

What is the classification of cooked, dried horse mackerel?

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 the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

1604 Prepared or preserved fish; caviar and caviar substitutes prepared from fish eggs: Fish, whole or in pieces, but not minced:

1604.15. Mackerel

1604.19 Other (including yellowtail):
In airtight containers:
Not in oil:

Other

Other

1604.19.80 Other

1604.20 Other prepared or preserved fish:

PD A83430 classified a product identified as "horse mackerel" in subheading 1604.15.0000, HTSUS. While there are no section or chapter notes relevant to the classification of this product in this subheading, Subheading Note 2 in Chapter 16 bears directly on fish classified by common name in heading 1604. This note provides: "2. The fish and crustaceans specified in the subheadings of heading 16.04 and 16.05 under their common names only, are of the same species as those mentioned in Chapter 3 under the same name."

In Chapter 3, mackerel are provided for in two subheadings which identify the common name, "Mackerel," with the scientific species included within that common name. The two subheadings (0302.64 and 0303.74, HTSUS) are identical and read as follows:

0302.64.0000 Mackerel (Scomber scombrus, Scomber australasicus, Scomber japonicus)

Therefore, for tariff purposes, the term "Mackerel" includes only the three species of the genus Scomber which are listed in the referenced subheadings.

PD A83430 describes the product which is the subject of the ruling as "horse mackerel". The Multilingual Dictionary of Fish and Fish Products, 2nd ed. (London & Tonbridge, The Whitefriars Press, Ltd. 1978) describes this fish on page 141 as follows:

"489 JACK MACKEREL
(a) Other name used for HORSE MACKEREL (Trachurus and Decapterus spp.) which belong to the family Carangidae. (b) In North America also more generally employed for this family, especially Caranx spp. (see +Jack). (c) In Australia and New Zealand refers to Trachurus declivis."

On page 165 of the dictionary, the term "Mackerel" is described as in the HTSUS, however, Scally Mackerel, a fish found near Australia is added.

"577 MACKEREL
Scomber spp. and/or Pneumatophorus spp.
(a) Mackerel (Atlantic) Scomber scombrus
(b) Chub Mackerel or pacific mackerel Scomber japonicus (c) Blue Mackerel (New Zealand) Scomber australasicus (d) Scally Mackerel (Australia) Ambylgaster postera"

Based on the foregoing, Horse Mackerel is not any of the three species of the genus Scomber which are designated as "Mackerel" in the HTSUS subheadings 0302.64.00 and 0303.74.00. Accordingly, by application of Subheading Note 2 to Chapter 16, fish which are designated Horse Mackerel are not Mackerel as provided for in subheading 1604.15.00, HTSUS.

HOLDING:

Horse Mackerel, cooked in boiling water to 100 degrees centigrade and then dried with hot air may be a prepared or preserved fish product classified in heading 1604, HTSUS. However, without further information regarding the duration or purpose of the cooking, we are unable to provide a specific classification. Should the importer desire a new binding ruling on this product, a ruling request containing all relevant facts may be submitted.

PD A83430, dated July 1, 1996, is revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

John Durant, Director

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