CIT Definition of 'Fish Extracts' Too Broad, Importer Seeking Reconsideration of Ruling Says
Fish oil importer BASF Corp. sought reconsideration of the Court of International Trade’s May 2 ruling that its fish oil ethyl ester concentrates are “extracts of fish” under Harmonized Tariff Schedule heading 1603, not “food preparations” under heading 2106 (see 2505020018). It said the court “overlooked” Explanatory Note 16.03 for heading 1603 to create an impracticably broad definition of "fish extracts" (BASF Corp. v. United States, CIT Consol. # 13-00318).
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Explanatory Note 16.03 instructs that fish extracts “have characteristics similar to those of meat extracts,” BASF said. And meat extracts, it said, are “undisputedly” flavoring additives added to food to improve its taste.
The trade court held that the question of whether a preparation is an extract “concerns both whether color, taste, and odor remain in the imported product and whether the imported product is sufficiently similar to the source in objective terms, such as by consisting of predominantly the same substance and form,” it said.
But CIT’s definition of an extract is too broad, it argued. It could sweep any number of fish preparations under the umbrella of an extract, “including fish meal, fish oil, cans of tuna, frozen fish dinners, and biodiesel made from fish,” the importer claimed. For example, “[f]ish meal would be an extract because it still smells like fish and has the same molecules as the fish it came from,” it said.
And the court also misses the explanatory note’s guidance that a product’s “fishy taste” is caused by trimethylamine, “a foul ‘degradation product,’ not a savory fish taste,” it said.
But even if this standard is correct, the importer argued that CIT failed to properly classify BASF’s products as imported. It said the trade court incorrectly described them in its opinion as “consisting almost entirely” of products found in fish -- fatty acids, triglycerides, glycerides and oligomers -- but that BASF’s products are made of ethyl esters, or “ethanol chemically bonded to fatty acids,” that don’t occur naturally in fish.
The court also mistakenly considered ethanol to be merely a “processing aid” needed “to concentrate the fatty acids in the crude fish oil,” not as the main part of the product, BASF claimed.
“In other words, the Court’s opinion appears to have classified sub-molecular portions of the imported merchandise -- fatty acids, rather than ethyl esters -- and the unintended leftovers from crude fish oil,” it said. “But a fundamental rule of tariff classification is that the Court must classify merchandise in ‘the condition in which it is imported.’”