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