The tariff classification of frozen "dusted" fish fillets from Vietnam.

N099244 April 26, 2010 CLA-2-03:OT:RR:NC:2:231 CATEGORY: Classification TARIFF NO.: 0304.29.6033 Ms. Mika M. McLafferty Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP 399 Park Avenue (25th Floor) New York, NY 10022-4877 RE: The tariff classification of frozen “dusted” fish fillets from Vietnam. Dear Ms. McLafferty: In your letter dated March 24, 2010, you requested a tariff classification ruling on behalf of your client, Mazzetta Company, LLC. The goods in question are natural fish fillets (species Pangasius hypophthalmus) that have been cut into single (55-gram) portions, lightly dusted with a blend of other substances, and individually quick-frozen. The “dusting blend,” which consists of 36% corn starch, 27% white corn meal, 27% rice flour and 10% modified corn starch, is said to comprise roughly 1 to 2 percent by weight of the overall product. You state that the dust does not penetrate the flesh of the fish to a significant level. You explain that the dusting creates a micro-thin protective layer used as an alternative to glazing. In the industry, frozen fish products are sometimes glazed, i.e., given an ice coating, as a means of minimizing moisture loss (dehydration) and protecting the surface of the fish during transport and storage. The use of dusting is said to have several advantages over glazing: Unlike glazing, it does not increase the package weight by 15-20%. It thereby reduces shipping and fuel expenses, and also reduces eventual discharge of wastewater. It reduces water activity on the surface of the fish, thereby making it more difficult for potentially hazardous microorganisms to multiply. It serves to retain the original moisture content of the fish (rather than increasing such content, as sometimes occurs with glazing). It reduces adherence of other fish pieces in the bag, making it easier to separate the portions when ready to use. (In some cases, glazing has the opposite effect, e.g., if “temperature abuse” causes the pieces to stick together as a large mass.) You state that once the fish fillets are imported and ready for use, they are thawed. After thawing, the dust is said to either be lost with the residual surface water or washed away by the consumer. You state that the benefit of the dusting is therefore complete once the fish fillets have been thawed. Cooking instructions provided on a specification sheet provided by your client read as follows: frozen fish is thawed out in refrigerator overnight prior to use frying oil is preheated to 375° f batter is prepared thawed fish fillets are hand-dipped in batter battered fillets dropped in oil for 4.25 minutes fried fillets removed by basket; excess oil is shaken out ready to serve Samples of the frozen, dusted fillet portions were submitted to this office for our examination. They appeared to be pieces of natural fillet having a light, whitish, powdery coating that seemed to be somewhat unevenly and irregularly distributed over the surfaces. Some scattered portions of the surfaces appeared to have little or no dust coverage. Chapter 3 of the Harmonized Tariff Schedule of the United States (HTSUS) generally covers basic fish and seafood items which have undergone minimal or limited processing, as described in the tariff headings themselves, and as discussed in the pertinent Harmonized Explanatory Notes. Fish/seafood products which have been subjected to further processing, such as cooking or combining with additional substances or ingredients, are usually regarded as being outside the scope of chapter 3 and thus classifiable instead as prepared or preserved fish/seafood of chapter 16, HTSUS. However, in Ruling HQ 953654 (January 26, 1994), Customs determined that certain imported fish pieces that had been dusted with cereal flour prior to packaging and shipment to the U.S. were still eligible for classification within chapter 3. In that case, the flour was unevenly and irregularly sprinkled over the product, did not permeate the fish, and constituted about 1½ percent of each piece’s total weight. The dusting was said to be used solely to achieve optimal shipping and transport conditions (i.e., to prevent frost formation and the adhesion of pieces), in lieu of shatterpacks and other methods which had proven less successful. It was noted that although the dusting process did help somewhat to preserve the fish, and to a degree could also facilitate the eventual adhesion of batter, it never had been a step in the preparation of the product. After evaluating the circumstances, Customs concluded that the fish pieces were dusted merely to facilitate their shipping and transport, that they were not preparations of chapter 16, HTSUS, and that they were appropriately classified in chapter 3, HTSUS. We find that the facts of the present case are sufficiently similar to those of the above-cited precedent to allow classification within chapter 3 of the HTSUS. Accordingly, the applicable subheading for the frozen, dusted Pangasius hypophthalmus fish fillet portions will be 0304.29.6033, HTSUS, which provides for fish fillets and other fish meat (whether or not minced), fresh, chilled or frozen: frozen fillets: other: other: other: other: fresh-water fish: Pangasius spp., including basa and tra. The rate of duty will be free. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/. The merchandise in question may be subject to antidumping duties or countervailing duties. Written decisions regarding the scope of AD/CVD orders are issued by the Import Administration in the Department of Commerce and are separate from tariff classification and origin rulings issued by Customs and Border Protection. You can contact them at http://www.trade.gov/ia/ (click on “Contact Us”). For your information, you can view a list of current AD/CVD cases at the United States International Trade Commission website at http://www.usitc.gov (click on “Antidumping and countervailing duty investigations”), and you can search AD/CVD deposit and liquidation messages using the AD/CVD Search tool at http://www.cbp.gov (click on “Import” and “AD/CVD”). This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at 301-575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Nathan Rosenstein at (646) 733-3030. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division