MAR-2 OT:RR:NC:N2:231
Ms. Lorrie Roddy
Edward J. Zarach & Associates Inc.
1099 Pratt Boulevard
Elk Grove Village, IL 60007
RE: The tariff classification and country of origin marking under the North American Free Trade Agreement (NAFTA), of Crab Cocktail Claws; Article 509
Dear Ms. Roddy:
This is in response to your letter dated November 21, 2018 requesting a ruling on the tariff classification and the country of origin for imported Crab Cocktail Claws on behalf of your client, Harbor Seafood Inc. (New Hyde Park, NY).
You have outlined a scenario where your client purchased cooked, frozen crab clusters in Canada for export to China. You have confirmed via an e-mail correspondence with our office that the product at issue is Snow Crab, also known by its scientific name, Chionoecetes opilio. In China, the claws are separated from the cluster. The shell of each claw is scored and the shell cap is removed, the exposed meat remains held by the pincer thereby creating the “cocktail claw.” The resulting product is then frozen, glazed with ice, and packed in partially vacuumed, heat-sealed, two-layered plastic bags. The bags are subsequently placed in corrugated cartons and returned to the United States.
The applicable subheading for the Crab Cocktail Claws will be 1605.10.2022, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Crustaceans, molluscs and other aquatic invertebrates, prepared or preserved: crab: Other: Crabmeat: In airtight containers: Snow crab: Chionoecetes opilio (small). The rate of duty will be Free.
General Note 12(b), HTSUS, sets forth the criteria for determining whether a good is originating under the NAFTA. General Note 12(b), HTSUS, (19 U.S.C. § 1202) states, in pertinent part, that
For the purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as “goods originating in the territory of a NAFTA party” only if--
(i) they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States; or
(ii) they have been transformed in the territory of Canada, Mexico and/or the United States so that--
(A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein, or
(B) the goods otherwise satisfy the applicable requirements of subdivisions (r), (s) and (t) where no change in tariff classification is required, and the goods satisfy all other requirements of this note; or
(iii) they are goods produced entirely in the territory of Canada, Mexico and/or the United States exclusively from originating materials; or
Based on the facts provided, the Crab Cocktail Claws, described above qualifies for NAFTA preferential treatment because it will meet the requirements of HTSUS General Note 12(b)(i). The goods will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.
In addition, you wished to know whether a substantial transformation had occurred with reference to the product at issue and to determine the proper country of origin marking.
With regard to country of origin and marking thereof, Section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article.
Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Pursuant to 19 CFR Section 134.1(b), the country of origin is the country of manufacture, production or growth of any article of foreign origin entering the U.S. Further work or material added to a foreign article in the United States must effect a substantial transformation in order to render the final product a good of the U.S. However, for a good of a NAFTA country, the NAFTA Marking Rules (set forth in 19 CFR Part 102) will determine the country of origin. The NAFTA rules will govern in the current scenario.
A substantial transformation occurs when an article emerges from a process with a new name, character or use different from that possessed by the article prior to processing. United States v. Gibson-Thomsen Co., Inc., 27 CCPA 267, C.A.D. 98 (1940); National Hand Tool Corp. v. United States, 16 CIT 308 (1992), aff’d, 989 F. 2d 1201 (Fed. Cir. 1993). However, if the manufacturing or combining process is merely a minor one that leaves the identity of the article intact, a substantial transformation has not occurred. Uniroyal, Inc. v. United States, 3 CIT 220, 542 F. Supp. 1026, 1029 (1982), aff’d, 702 F.2d 1022 (Fed. Cir. 1983). In the case of the Crab Cocktail Claws said to be obtained from snow crabs (Chionoecetes opilio), this office finds that the product is not substantially transformed as a result of the processing in China.
Applying the NAFTA Marking Rules set forth in Part 102 of the regulations to the facts of this case, we find that the Crab Cocktail Claws said to be obtained from snow crabs (Chionoecetes opilio) are goods of Canada for marking purposes
Please note that seafood is subject to the Mandatory Country of Origin Labeling (“COOL”) requirements administered by the USDA’s Agricultural Marketing Service (AMS), we advise you to check with that agency for their further guidance on your scenario. Contact information for AMS is as follows:
USDA-AMS-LS-SAT
Room 2607-S, Stop 0254
1400 Independence Avenue, SW
Washington, DC 20250-0254
Tel. (202) 720-4486
Website: www.ams.usda.gov/COOL
Email address for inquiries: [email protected]
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 CFR Part 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 Ekeng Manczuk at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division