The Country of Origin of Tuna

N310643 April 14, 2020 OT:RR:NC:N2:231 CATEGORY: Country of Origin Mr. Raffaele Natale American Shipping Company, Inc. 250 Moonachie Road Moonachie, New Jersey 07074 RE: The Country of Origin of Tuna Dear Mr. Natale: This is in response to your letter dated March 12, 2020, requesting a country of origin determination on behalf of Tri Union Seafoods LLC, D.B.A. Chicken of The Sea International (El Segundo, CA) for “Tuna Fish”. The merchandise under consideration is Tuna harvested by US-flagged fishing vessels from the Food and Agriculture Organization (FAO) of the United Nations Major Fishing Area 67 (Northeast Pacific Ocean). The fish undergoes a cleaning process consisting of the removal of the head and viscera then it is frozen, packed and shipped to China. You have stated that in China the fish will be defrosted, processed then subsequently exported to the United States. In the first scenario, the defrosted fish will be precooked, skinned, deboned and broken into chunks or pieces manually or mechanically then packed in either cans or pouches with added vegetable broth or oil. In the second scenario, the defrosted uncooked fish will be cut into chunks then packed into cans with added salt. In the third scenario, the defrosted fish will be trimmed, de-boned and cut into either fillets or chunks, vacuum-sealed in bags, frozen and packed. 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 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, 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 Association v. The United States, 207 U.S. 556 (1908) and Uniroyal Inc. v. United States, 542 F. Supp. 1026 (1982). 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 that 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 noted that while the fish arrived in South Korea with the look of a whole fish, when they left they no longer possessed the essential shape of a fish. The fillets were considered discrete commercial goods and had a different tariff classification. Concerning the present case, Tuna is caught by U.S.-flagged fishing vessels, processed in China as described in the first and third scenarios, i.e., pre-cooked, skinned, trimmed, deboned, cut into chunks, then frozen and shipped to the United States. We find the processing that occurs in China does constitute a substantial transformation. The country of origin of the finished product is China. In the second scenario, we find that the tuna fish which will be defrosted, cut into chunks and then packed into cans with added salt does not constitute a substantial transformation. The country of origin of the finished product is the USA. Whether an article may be marked with the phrase "Made in the USA" or similar words denoting U.S. origin, is an issue under the authority of the Federal Trade Commission (FTC). We suggest that you contact the FTC Division of Enforcement, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20508 on the propriety of proposed markings indicating that an article is made in the USA. Products of China classified under subheadings 9903.88.01, 9903.88.02, 9903.88.03, 9903.88.04 or 9903.88.15, Harmonized Tariff Schedule of the United States (HTSUS), unless specifically excluded, are subject to an additional ad valorem rate of duty. At the time of importation, you must report the appropriate Chapter 99 subheading, in addition to the product’s tariff classification. See U.S. Note 20 to Subchapter III, Chapter 99, HTSUS. The HTSUS is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background information regarding the Section 301 trade remedy, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china, respectively. 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-SA 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 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 CFR Part 177). 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 Ekeng Manczuk at ekeng.b.manczuk@cbp.dhs.gov. Sincerely, Steven A. Mack Director National Commodity Specialist Division