OT:RR:NC:N2:231
Ms. Ashley Hong
Nissin International Transport USA, Inc.
1540 W. 190th Street
Torrance, CA 90501
RE: THE COUNTRY OF ORIGIN OF FROZEN BROILED EEL
Dear Ms. Hong:
This is in response to your letter dated November 26, 2019 requesting a country of origin determination on behalf of Wismettac Asian Foods Inc. (Santa Fe Springs, CA) for “Frozen Broiled Eel”. You submitted flow charts depicting the various stages of operation and pictorial representations of the products.
The subject merchandise is “Frozen Broiled Eel” designated as Type A and Type B. The product is composed of eel farm raised in China that has been filleted, beheaded, and from which the back fin has been trimmed off. Product Type A is placed on the grill twice, while Type B does not undergo the same process; both are then steamed, frozen, graded by size, packed, and exported to Indonesia. In the latter country, the product is defrosted, Type A is dipped in sauce and grilled four times while Type B is grilled six times. Upon completion of the grilling process, the “Frozen Broiled Eel” is frozen, graded by size, vacuum packed, and exported to the United States.
The "country of origin" is defined in 19 CFR 134.1(b) as "the country of manufacture, production, or growth of any article of foreign origin entering the United States. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the 'country of origin' within the meaning of this part.
The courts have held that 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); Anheuser Busch Brewing Association v. The United States, 207 U.S. 556 (1908) and Uniroyal Inc. v. United States, 542 F. Supp. 1026 (1982).
In Koru North America v. United States, 701 F. Supp. 229 (CIT 1988), the court considered whether the processing of headed and gutted fish in South Korea by thawing, skinning, boning, trimming, freezing, and packaging constituted a substantial transformation. The court concluded that the processing performed in South Korea into “quick- frozen” fillets substantially transformed the headed fish because there was a change in name and character. The court noted that while the fish arrived in South Korea with the look of a whole fish, when they left they no longer possessed the essential shape of a fish. The fillets were considered discrete commercial goods and had a different tariff classification.
Concerning the present case, the “Frozen Broiled Eel” is farm raised in China, processed in China and Indonesia, (i.e., filleted, trimmed, grilled, steamed etc.), then frozen and shipped to the United States. We find the processing that occurs in Indonesia does not constitute a substantial transformation. The country of origin of the finished product, “Frozen Broiled Eel” is China.
Products of China classified under subheadings 9903.88.01, 9903.88.02, 9903.88.03, 9903.88.04 or 9903.88.15, Harmonized Tariff Schedule of the United States (HTSUS), unless specifically excluded, are subject to an additional ad valorem rate of duty. At the time of importation, you must report the appropriate Chapter 99 subheading, in addition to the product’s tariff classification. See U.S. Note 20 to Subchapter III, Chapter 99, HTSUS.
The HTSUS is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background information regarding the Section 301 trade remedy, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china, respectively.
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-SA
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 the 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).
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