HQ 959191

November 23, 1998

CLA-2 RR:CR:GC 959191 RC/JGB

CATEGORY: Classification

TARIFF NO.: 2106.90.6999

Port Director of Customs

1000 2nd Avenue, Room 2200

Seattle, Washington 98104

RE: Protest 3004-96-100122, seafood extract powders

Dear Sir:

This is our decision on Protest 3004-96-100122 timely filed February 14,
1996, against your decision in the classification of various seafood
extract powders under the Harmonized Tariff Schedule of the United
States (HTSUS). The products were entered in 1994. On June 10, 1997,
counsel for the protestant met with headquarters personnel to discuss
this matter. On August 28, 1997, counsel submitted additional
information.

**FACTS:**

The natural seafood extract powder products consist of Codfish Extract
Powder, Anchovy Extract Powder, Lobster Extract Powder, Crab Extract
Powder, Shrimp Extract Powder, Plankton Extract Powder, and Baby Clam
Extract Powder. The extract powders were entered under various
subheadings in chapter 3, HTSUS, as other flours, meals and pellets of
aquatic invertebrates other than crustaceans, fit for human consumption.
Customs liquidated the entries as edible preparations, not elsewhere
specified or included in subheading 2106.90.6999, HTSUS. The protestant
claims that the seafood extract powders are all classifiable in
subheading 1603.00.9090, HTSUS, the provision for other extracts and
juices of meat, fish, or crustaceans, molluscs, or other aquatic
invertebrates or, in the alternative, in chapter 3, HTSUS,

The products are described by the protestant in the aggregate as seafood
and are claimed to contain approximately 40 percent by weight of
seafood, approximately 30 percent by weight

of salt, and 35 percent by weight of cornstarch. In addition, rather
elaborate explanations have been provided to account for the
preservative qualities of the added salt and the use of the cornstarch.
The stated preservative function of the salt is not disputed here. The
cornstarch is said to "function as an encapsulator and to reduce
viscosity in order to avoid stick water, oil/fat, salt and water to
separate during the continuation of the production process."
Protestant's memorandum of August 28, 1997. This function is also not in
dispute; however, there is a dispute as to whether, as the protestant
states, "\[I\]n combination with the salt, the cornstarch preserves the
seafood extract from getting decomposed and spoiled by decomposition."
*Id.* The function of these ingredients will determine in part in which
chapter the powders will be classified.

**ISSUE:**

Whether the seafood extract powders are properly classifiable in chapter
3, 16, or 21 under the HTSUS.

**LAW AND ANALYSIS:**

Classification under the HTSUS is made in accordance with the General
Rules of Interpretation (GRI\'s). 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 GRI\'s may then
be applied. The Harmonized Commodity Description and Coding System
Explanatory Notes (EN's), which represent the official interpretation of
the tariff at the international level, facilitate classification under
the HTSUS by offering guidance in understanding the scope of the
headings and GRI\'s. *See,* T.D. 89‑80, 54 Fed.Reg. 35127 (August 23,
1989).

With regard to the Chapter 16, HTSUS, claim, Note 2 to chapter 16
states:

> \(2\) Food preparations fall in this chapter provided that they
> contain more than 20 percent by weight of sausage, meat, meat offal,
> blood, fish or crustaceans, molluscs or other aquatic invertebrates,
> or any combination thereof. In cases where the preparation contains
> two or more of the products mentioned above, it is classified in the
> heading of chapter 16 corresponding to the component or components
> which predominate by weight.

The ENs to heading 1603 in defining fish extracts note that they 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. However,
the ENs to heading 1603 state that the heading does not cover:

> \(a\) Soups and broths and preparations therefor and homogenised
> composite food preparations containing meat, fish, *etc.*, extract
> (including soups and broths in the form of tablets or cubes) which in
> addition to such products contain other substances such as fat,
> gelatin and usually a large proportion of salt (heading 21.04).

In considering the appropriateness of classification in either chapter
16 or 21, we look primarily to the content of the various seafood
extracts. The initial question is whether the product is truly an
extract. The Court of International Trade in *Marcor Development
Corporation v. U.S.*, 20 CIT \_\_, Court No. 94-08-00456, Slip Op. 96-71
(May 3, 1996), dealt with the question what constitutes an extract and
concluded that "an extract must maintain the essence of the main
source." *Id.* Slip Opinion at 13. While *Marcor* clearly involved a
different product (52 to 60 percent shark cartilage and 40 to 48 percent
dextrin), there are also some instructive parallels. The court found
that the product was not an extract, because even with the predominance
of shark cartilage, the added dextrin rendered the product as something
that did not maintain the essence of the main source. The persuasive
sense from *Marcor* is that the product failed as an extract first
because it had gone beyond the purity required of an extract and second
because the product was used as a food supplement and not as a
flavoring. With respect to the product under consideration here, they
fail as extracts due to their additional ingredients; although they are
claimed to be used as flavorings.

We note that all of the extracts contain significant amounts of salt
(approximately 30 percent) and varied amounts of cornstarch. While the
protestant's counsel submitted that the

crab extract, in fact, contains 27 percent salt, we consider the
variance of 3 percent to be inconsequential. Furthermore, it is
immaterial what the salt content is during processing prior to the time
of importation. At the time of importation, the extracts contain
approximately 30 percent salt. Classification is based upon the
condition of an article at the time of importation. *See,* *U.S. v.
Citroen*, 223 U.S. 407 (1911).

We find that a salt content of approximately 30 percent is a large
proportion, far in excess of an amount needed to "ensure preservation."
Counsel for the protestant indicates that similar seafood extracts, used
for the same commercial purposes, generally have a shelf life of about
18 months. The protestant's company processes the seafood extracts in
such a way as to increase the shelf life to 40 months. We find that any
endeavor to extend the standard retail shelf life (from 1-1/2 year to
almost 3-1/2 years) by, among other things, increasing the salt content
up to approximately 30 percent, goes beyond what is necessary to ensure
preservation of these products by measure of prevailing commercial
practices.

In noting that the amount of salt is in excess of what is expected for
this type of product, we are not doubting that the salt operates as a
preservative or questioning whether longer shelf life may be desirable
in some circumstances. In most cases, how an importer makes his product
is only of concern to Customs in order to confirm a correct
classification. Here we are presented with an EN that addresses a
relatively pure product, an extract, and sets forth those limited
conditions under which another substance may be combined with the
essential product and still retain its identity as an extract. The EN to
heading 1603 sets out the types of products included and then states,
"\[a\]ll these products may contain salt of other substances added in
sufficient quantities to ensure their preservation." The only
interpretation that can be made from this note in context is that "salt
and other substances" do not disqualify a pure product from
classification as an extract, provided that the amount present is
reasonably sufficient to ensure preservation. Here, because the salt
present far exceeds what would be expected for preservation, the
products fail to qualify for classification in Chapter 16.

With respect to the claim that the significant amounts of cornstarch (on
average approximately 30 percent) is important to the preservation
process, we find that it serves principally as a thickening agent,
rather than as a preservative. We also do not dispute the description of
the usefulness of the cornstarch; however, the cornstarch serves to hold
the mixture together so that it will not lose its desired consistency.
While it may "preserve" the condition of the material and keep it from
falling out, preserve in the food context generally means to delay or
retard spoilage.

As food preparations precluded from classification as extracts, proper
classification is in the residual provision of heading 2106, "Food
Preparations Not Elsewhere Specified or Included." Customs has
consistently ruled that similar products are classifiable in chapter 21,
based upon their content at the time of importation. *See*, Headquarters
Ruling Letter (HRL) 959149, dated August 9, 1996; HRL 954142, dated
October 5, 1993; New York Ruling Letter (NYRL) 893280, dated January 19,
1994; NYRL 857248, dated December 24, 1990. We find, given the
substantial amount of salt and the various amounts of cornstarch, that
these products fail to meet the standards of extracts as provided by the
Court of International Trade and the EN's and are properly classified in
chapter 21.

While the protestant submitted information to support the claim that
these products would be properly classified in chapter 16, none was
submitted to support the claim that these products would be properly
classified in chapter 3. There is no evidence that the products are
either agglomerated or ground. Lastly, the products are not marketed as
either fish flour or meal. Therefore, we find no basis for considering
these products in chapter 3. *See, Nadel & Sons Toy Corp. v. U.S.*, 4
CIT 20, 22 (1982)(manner of a product's marketing is a factor to be
considered in determining proper classification).

**HOLDING:**

The seafood extract powders are classifiable as other food preparations
not elsewhere specified or included, in subheading 2106.90.6999, HTSUS.

The protest should be DENIED. In accordance with Section

3A(11)(b) of Customs Directive 099 3550‑065, 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.ustreas.gov, by means of the Freedom of Information Act, and
other methods of public distribution.

Sincerely,

John Durant, Director

Commercial Rulings Division