CLA-2-03:OT:RR:NC:N2:231
Ms. Sky Lan
Clear Ocean Seafood Ltd.
21331 Gordon Way
Richmond, BC V6W 1J9, Canada
RE: The Tariff Classification and Country of Origin of Frozen Scallops
Dear Ms. Lan:
In your letter, dated June 2, 2022, you requested a classification and country of origin determination.
You have outlined a scenario in which Japanese Scallops (Patinopecten yessoensis) harvested in Japan are exported frozen, whole, in shell to China where they are thawed, shucked, soaked in a water solution containing the additive sodium tripolyphosphate, and individually quick frozen (IQF). The product is then sorted by count, placed in five-pound retail bags, packed four bags per carton, and shipped frozen to the United States. The product will be sold to food service providers and retail stores.
You seek a determination as to the tariff classification and country of origin of the above-described product.
The applicable subheading for the above-described frozen scallops will be 0307.22.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for: Molluscs, whether in shell or not, live, fresh, chilled, frozen, dried, salted or in brine…: Scallops and other molluscs of the family Pectinidae: Frozen. The rate of duty will be Free.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at https://hts.usitc.gov/current.
The marking statute, 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 an ultimate purchaser in the U.S. the English name of the country of origin of the article.
As provided in section 134.41(b), of Title 19 of the Code of Federal Regulations (19 C.F.R. §134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.
With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR §134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, Customs Regulations (19 CFR §134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable.
Part 134 of Title 19 of the Code of Federal Regulations (19 C.F.R. Part 134) implements the country of origin marking requirements of 19 U.S.C. §1304. Section 134.1(b) (19 C.F.R. §134.1(b)) defines “country of origin” as follows:
[T]he 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 [the marking regulations]…
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).
Regarding the above-described scallops, this office finds that the article is not substantially transformed due to processing that is performed in China. Accordingly, based on the information presented, the scallops are a product of Japan for CBP country of origin and 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 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 Title 19 of the Code of Federal Regulations (19 C.F.R. 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 questions regarding the ruling, contact National Import Specialist Ekeng Manczuk at [email protected]. Sincerely, Steven A. Mack Director National Commodity Specialist Division