CLA-2-03: RR: NC: 2:231 R01717
Mr. Wayne Emminizer
Ocean Beauty Seafoods, Inc.
1815 Trinity Valley Drive
Carrollton, TX 75006
RE: The tariff classification, country of origin marking and status under the North
American Free Trade Agreement (NAFTA), of fresh or chilled Pacific halibut
steaks from Canada; Article 509
Dear Mr. Emminizer:
In your letter dated March 29, 2005 you requested a ruling, under the NAFTA, regarding the marking, country of origin, and the tariff classification for certain halibut steaks.
The merchandise is fresh or chilled halibut steaks, produced in Canada from fresh or chilled Pacific halibut (Hippoglossus stenolepis). These steaks will be processed from fresh or chilled H&G halibut of U.S. origin. The skin will remain on the steaks and the bones will not be removed. You state that, “once processed into steaks, the Tariff classification becomes 0304.10.4085 (FDA 16 AFD20).” We would disagree.
Heading 0302 of the Harmonized Tariff (HTS) provides for “fish, fresh or chilled, excluding fish fillets and other fish meat of heading 0304.” Heading 0304 provides for “fish fillet and other fish meat (whether or not minced), fresh, chilled or frozen.” The significant difference between heading 0302 and 0304 is that the latter heading provides for boneless fish meat, while the former allows for the presence of bones. Thus, the Explanatory Notes to heading 0304 describe the products included therein:
“0304 – Fish Fillets and Other Fish Meat (whether or not minced), fresh, chilled or frozen.
...
(1) Fish fillets.
For the purposes of this heading the term fish fillets means the strips of meat cut parallel to the backbone of the fish and constituting the right or left side of a fish insofar as the head, guts, fins (dorsal, anal, caudal, ventral, pectoral) and bones (spinal column or main backbone, ventral or costal bones, branchial bone or stapes, etc.) have been removed and the two side are not joined together, for example, by the back or belly.
The classification of these products is not affected by the possible presence of the skin, sometimes left attached to the fillet to hold it together or to facilitate subsequent slicing. Classification is similarly unaffected by the presence of pin bones or other minor bones which may not have been completely removed.
Fillets cut into pieces are also classified as fillets in this heading.
...
(2) Other fish meat (whether or no minced), i.e., fish meat from which the bones have been removed. As in the case of fish fillets, classification of fish meat is unaffected by the presence of minor bones which may not have been completely removed.”
While fillets are cut parallel to the backbone and yield, as cuts, the sides of the fish, fish steaks are portions cut at right angles to the backbone, so that each steak includes a piece of the backbone. Accordingly, fish steaks would not be considered boneless fish meat.
The Explanatory Notes for heading 0302, HTS, state, in part that “[t]his heading covers fish, fresh or chilled, whether whole, headless, gutted, or in cuts containing bones or cartilage.” Accordingly, the instant halibut steaks, which consist of fresh or chilled cuts of fish containing bones, are classifiable in heading 0302, HTS.
The applicable subheading for the halibut steaks will be 0302.21.0020, Harmonized Tariff Schedule of the United States (HTS), which provides for fish, fresh or chilled, excluding fish fillets and other fish meat of heading 0304, flat fish, excluding livers and roes, halibut, Pacific. The rate of duty will be Free.
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 telephone number (301) 575-0156, or at the Web site www.fda.gov/oc / bioterrorism/bioact.html.
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 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.
The country of origin marking requirements for a "good of a NAFTA country" are also determined in accordance with Annex 311 of the North American Free Trade Agreement ("NAFTA"), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat 2057) (December 8, 1993) and the appropriate Customs Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, Customs Regulations. The marking requirements of these goods are set forth in Part 134, Customs Regulations.
Section 134.1(b) of the regulations, defines "country of origin" as
the country of manufacture, production, or growth of any article of foreign origin entering the U.S. 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 this part; however, for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin. (Emphasis added).
Section 134.1(j) of the regulations, provides that the "NAFTA Marking Rules" are the rules promulgated for purposes of determining whether a good is a good of a NAFTA country. Section 134.1(g) of the regulations, defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules. Section 134.45(a)(2) of the regulations, provides that a "good of a NAFTA country" may be marked with the name of the country of origin in English, French or Spanish.
You state that the imported halibut steaks are processed in a NAFTA country,--that is, in Canada,--prior to being imported into the U.S. Since Canada is defined under 19 CFR 134.1(g), as a NAFTA country, we must first apply the NAFTA Marking Rules in order to determine whether the imported steaks are a "good of a NAFTA country", and thus subject to the NAFTA marking requirements.
Part 102 of the regulations, sets forth the "NAFTA Marking Rules" for purposes of determining whether a good is a good of a NAFTA country for marking purposes. Section 102.11 of the regulations, sets forth the required hierarchy for determining country of origin for marking purposes.
Applying the NAFTA Marking Rules set forth in Part 102 of the regulations to the facts of this case, we find that the imported halibut steaks are goods of the United States for marking purposes. The Bureau of Customs and Border Protection does not require goods of American origin to be marked “Product of the U.S.A.” Rather, regulatory authority for the marking of domestic goods is the responsibility of the Federal Trade Commission. Accordingly, you may contact that agency for guidance on the marking of these goods.
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 Thomas Brady at 646-733-3030.
Sincerely,
Robert B. Swierupski
Director,
National Commodity
Specialist Division