H338586

H338586 July 21, 2025 OT:RR:CTF:FTM H338586 TSM CATEGORY: Classification TARIFF NO.: 0304.61.00 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). 2 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 be1 “tilapias, frozen, each weighing not more than 115 g.” 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 wit

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 be1 “tilapias, frozen, each weighing not more than 115 g.” 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 perc