OT:RR:NC:N2:231
Mr. Alexander Pellerito
Sojitz Corporation of America
1120 Avenue of the Americas
New York, NY 10036
RE: The Country of Origin of Yellowfin Tuna
Dear Mr. Pellerito:
In your letter dated July 20, 2021, you requested a country of origin determination for Yellowfin Tuna.
You presented a scenario in which Yellowfin Tuna is caught by Chinese-flagged vessels. The whole tuna fish is gilled and gutted on board the vessel. The tuna is exported to Japan where the following processes are performed: the tail and head are removed, then the fish is split into two separate pieces followed by the removal of the fin bone and spine. The remaining loins are pruned to remove the dark flesh from the surface and then from under the skin after the fish is skinned. Lastly, the belly is removed and cleared of the remaining small bones and bloodlines. The finished product is wrapped in plastic bags, packaged in Styrol or cardboard boxes, and then shipped as sushi grade tuna to the United States.
You seek a determination as to the country of origin of the above-described product for marking purposes.
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 United States 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, CAD 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).
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). Substantial transformation determinations are based on the totality of the evidence and circumstances of each case. See Headquarters Ruling (HQ) W968434, dated January 17, 2007, citing Ferrostaal Metals Corp. v. United States, 11 CIT 470, 478, 664 F. Supp. 535, 541 (1987).
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 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 also noted that the fish arrived in South Korea with the look of a whole fish, but when it departed, it lacked the essential shape of a fish. The fillets were considered discrete commercial goods and had a different tariff classification.
Regarding the product at issue, you note that the Yellowfin Tuna caught by Chinese-flagged vessels will undergo eighteen processes in Japan, as highlighted above. Based on the foregoing information, the country of origin of the Yellowfin Tuna for country of origin and marking purposes will be Japan.
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 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 C.F.R. 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