THE COUNTRY OF ORIGIN MARKING OF CRABS HARVESTED AND PROCESSED ON THE HIGH SEAS

N148076 March 7, 2011 MAR-2 OT:RR:NC:2:231 CATEGORY: MARKING Mr. Michael J. Burke, Jr. Seasource Imports, Ltd. 400 Massasoit Ave., Suite 103 East Providence, RI 02914 RE: THE COUNTRY OF ORIGIN MARKING OF CRABS HARVESTED AND PROCESSED ON THE HIGH SEAS Dear Mr. Burke: This is in response to your letter dated February 11, 2011, requesting a ruling on whether the proposed marking “Product of the North Atlantic” is an acceptable country of origin marking for imported frozen crab clusters. A marked sample was not submitted with your letter for review. You have outlined a scenario in which a Belize-flagged factory vessel will harvest, butcher, cook, freeze and package deep-sea red crabs (Chaceon affinis) at sea. You state that the crabs will be harvested “in the North Atlantic at the Mid Atlantic Ridge, which runs from Newfoundland to Florida, about 1800 miles off the U.S. coast.” Based on your summary of the facts, it is understood that both the harvesting and all of the aforementioned subsequent processing and packaging will be done by/aboard the vessel while it is in international waters. The finished product, which you describe as frozen crab clusters ready for the foodservice industry, will land in Boston. You state that you would like to label the finished goods “Product of the North Atlantic,” without naming Belize as the country of origin. You believe that showing Belize as the country of origin would be misleading. 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. As provided in section 134.41(b), Customs Regulations (19 CFR 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. A specialized rule governs seafood articles such that, unless the animal was caught or harvested within the territorial waters of a country, the country of origin follows the flag of the catching vessel. This rule of origin, the “Law of the Flag,” was affirmed by the Court of International Trade in Koru North America v. United States, 701 F. Supp. 229 (CIT 1988). The court noted that “in international law, a ship on the high seas is considered foreign territory, functionally, ‘a floating island of the country to which [it] belongs’.” In the present case, the crabs are harvested, processed and packaged by/aboard the Belize-flagged vessel while it is in international waters. Therefore, Belize is the country of origin of the finished (packaged) product. In light of the above conclusion, together with the fact that the “North Atlantic” is not a “country” as defined in section 134.1(a) of the Customs Regulations, the proposed marking “Product of the North Atlantic” does not satisfy the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134, and is not an acceptable country of origin marking for the imported frozen crab clusters. “Product of Belize” would be an acceptable marking. While we understand your stated concern that the “Belize” marking might be misleading, this agency has no authority to disregard or change the applicable law. You may wish to investigate the possibility of seeking a change through the courts or the Congress. Seafood products may also be subject to the Mandatory Country of Origin Labeling (“COOL”) requirements administered by the USDA’s Agricultural Marketing Service (AMS). You may check with that agency for further guidance on those requirements. 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: COOL@usda.gov This ruling does not address the possible impact upon your scenario of the Nicholson Act (46 U.S.C. 251), which imposes certain restrictions on the landing in U.S. ports of certain seafood products harvested, processed and/or conveyed by foreign-flag vessels. If you wish to pursue additional information or a ruling on that point, you may contact the Cargo Security, Carriers and Immigration Branch, Regulations and Rulings, U.S. Customs and Border Protection, 799 9th St., NW, 7th fl., Washington, D.C. 20229-1177, telephone (202) 325-0082. 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 Nathan Rosenstein at (646) 733-3030. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division