CLA-2-03:OT:RR:NC:N5:231
Poul Jensen
Danish Seafood Association
Esthersvej 5 2.th Hellerup 2900 Denmark
RE: The tariff classification and country of origin of Smoked Salmon
Dear Mr. Jensen:
In your letter dated July 7, 2023, you requested a tariff classification and country of origin determination ruling.
You have outlined a scenario whereby wild sockeye salmon (Oncorhynchus nerka) will be harvested in the United States then exported to Denmark where it will be filleted and smoked. The frozen product which will be packed in 4-ounce and 8-ounce retail sized packages will be imported into the United States for sale to supermarket chains such as Costco, etc.
You seek a determination as to the proper tariff classification and country of origin of the above-described product. In a subsequent email correspondence with this office, you wished to know whether the chapter 98 provision of the HTSUS will be applicable to the smoked salmon fillet when it is imported into the U.S. from Denmark.
Subheading 9801.00.10, HTSUS, provides for the duty-free entry of products of the United States when returned after having been exported, without having been advanced in value or improved in condition by any process of manufacture or other means while abroad, provided there has been compliance with the documentary requirements of section 10.1, Customs Regulations (19 C.F.R. § 10.1). According to the scenario outlined in your ruling letter, the frozen, whole, sockeye salmon that will be sent abroad will undergo various additional processes outlined in the flowchart you submitted before it is returned to the United States. The salmon is cleaned (i.e. removal of the head, skin and innards), sliced, smoked, frozen, packaged, and labeled. In this case, the process of cleaning and reducing the frozen whole salmon into smoked fillets will serve to advance the product in value and improve the condition of the salmon that are to be exported to the United States. Accordingly, the Smoked Sockeye Salmon is not entitled to classification under subheading 9801.00.1098, HTSUS.
The applicable subheading for the Smoked Salmon will be 0305.41.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for: “Fish, dried, salted or in brine; smoked fish, whether or not cooked before or during the smoking process: Smoked fish, including fillets, other than edible fish offal: Pacific salmon (Oncorhynchus nerka, Oncorhynchus gorbuscha, Oncorhynchus keta, Oncorhynchus tschawytscha, Oncorhynchus kisutch, Oncorhynchus masou and Oncorhynchus rhodurus), Atlantic salmon (Salmo salar) and Danube salmon (Hucho hucho).” The rate of duty will be 5 percent ad valorem.
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 at https://hts.usitc.gov/current.
The “country of origin” is defined in 19 C.F.R. § 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., 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 Ass’n v. 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, 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. See Headquarters Ruling Letter (HQ) W968434, dated January 17, 2007, citing Ferrostaal Metals Corp. v. United States, 11 CIT 470, 478, 664 F. Supp. 535, 541 (1987).
In the case of the above-described sockeye salmon, this office finds that the article is substantially transformed due to the processing in Denmark. Accordingly, based on the information presented, the packages of smoked sockeye salmon are products of Denmark for CBP 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 Website www.fda.gov/oc/bioterrorism/bioact.html.
This ruling is being issued under the provisions of Part 177 of the Customs and Border Protection 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, please contact National Import Specialist Ekeng Manczuk at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division